Soldiers sue for reimbursement

Four Massachusetts National Guard soldiers, called to active duty after the Sept. 11, 2001, terrorist attacks, filed a federal lawsuit yesterday, arguing they were forced to pay for their own lodging, meals, and commuting expenses while they were protecting the state from terrorism.

The lawsuit is apparently the first claim of its kind nationally, and the soldiers hope to expand their suit to include hundreds of others who have served in the Massachusetts National Guard since Sept. 11, their lawyers said. If the soldiers in all approximately 300 positions at issue were fully reimbursed for every day since Sept. 11, 2001, they would be owed an estimated $73 million, the lawyers said.

The four plaintiffs said they were never given reasons why their reimbursements -- a maximum of $158 a day for food and lodging, plus travel expenses -- were denied.

Sergeant Wayne R. Gutierrez of New Bedford, one of the soldiers suing for reimbursements, said his family struggled under the financial burden of paying for travel expenses and meals while he was serving at Camp Edwards in Bourne. His Guard duty cost him about $18,000 over three years, he said.

''I had to not pay one bill to pay for another," said Gutierrez, who is married and has two children.

Major Winfield Danielson, a spokesman for the Massachusetts National Guard, said his office was reviewing the lawsuit and could not discuss it.

But he said the rules for reimbursements for soldiers are complex and depend on several factors, including what type of duty the soldiers are on, how long they are serving, and whether the government provides lodging where soldiers are working.

He said he couldn't discuss how those factors applied to the four soldiers suing because he did not know their status.

But John Shek of Boston, the soldiers' attorney, said he knew of no other state where similar Guard orders denying the reimbursements for post-Sept. 11 security were issued.

''People just didn't know how to handle this mass activation of people," said Constance A. Driscoll, a military law specialist who is advising the soldiers.

Lawyers for the soldiers say those serving in the National Guard have historically been reimbursed for reasonable expenses for travel, food, and lodging. Many soldiers traveled more than 100 miles a day to report to duty, the lawyers said. The reimbursements, they argue, are required by federal law.

The soldiers who filed the lawsuit are paid with federal money, but they work under the command of the state National Guard. Before Sept. 11, 2001, National Guard duty usually required one weekend a month and two weeks a year of training.

But after the Sept. 11 attacks, soldiers were called to guard a host of possible targets around the state, including military bases, airports, reservoirs, and nuclear power plants. Some Guard soldiers are still in those security postings.

National Guard soldiers who are sent overseas, including those sent to Iraq, are under federal command and paid by the federal government. Those who are called up to respond to natural disasters such as a blizzard are usually under state command and paid by the state.

First Lieutenant Veronica Saffo, a spokeswoman for the Vermont National Guard, said orders calling up National Guard soldiers typically lay out whether lodging and meals are provided by the government, as they are for soldiers who serve one weekend a month, she said.

''If there's not lodging available, you need to find accommodation somewhere and you should be reimbursed for that," said Saffo.

Soldiers are usually reimbursed for one round-trip to their base location for each weekend, or two-week training period, she said. But soldiers are not necessarily reimbursed for daily commutes to their base, she said.

Retired Captain Louis P. Tortorella of Brookline, N.H., another of the Massachusetts Guard soldiers who filed the lawsuit, said he spent about $14,600 of his own money on expenses necessary to carry out his 21-month assignment to Camp Edwards between 2001 and 2003.

He said the trip from his home to Cape Cod was 250 miles roundtrip and took 3 1/2 hours, a drive he made daily because he was refused reimbursement for lodging.

During part of his service, he was assigned to security at the Quabbin Reservoir, Boston's main drinking water source, overseeing about 45 soldiers.

There was no place to sleep at the reservoir, and so he and other soldiers drove home after their shifts.

The lawsuit does not detail how much the other two plaintiffs -- Sergeant Steven M. Littlefield of Plymouth and Joseph P. Murphy of Derry, N.H. -- say they are owed.

Gutierrez said he worries that he will suffer reprisals from the National Guard for his role as a plaintiff in the lawsuit. Some soldiers have told the lawyers they were threatened with discipline by senior officers when they challenged the denials.

''I got two years left," Gutierrez said at a press conference at Shek's office. ''I'm just afraid they that might do something that might get me kicked out."

Shek said that although the reimbursements are federally funded, he does not know where the money sought in the lawsuit would come from. So the lawsuit names 10 defendants, including the Massachusetts National Guard, Governor Mitt Romney, and US Defense Secretary Donald H. Rumsfeld.

Charles Miller, a spokesman for the civil division of the US Department of Justice, another of the defendants named in the lawsuit, said he could not discuss it.

He has not seen any similar lawsuits from other states, he said.

Kathleen Burge can be reached at kburge@globe.com