RICHARD W. COMERFORD, )

Plaintiff, )

)

vs. ) Civil Action No. 99-0416F

)

Massachusetts National Guard, ) Complaint

and Raymond A. Vezina, in his official )

capacity, and individually, and ROBERT E. )

D'ALTO, )

Defendants )

The Massachusetts National Guard ("MANG") has violated the U.S. Code, numerous Army Regulations the General Laws of Massachusetts, and the regulations controlling MANG, by improperly ordering Major Richard Comerford ("Comerford") to active duty (AD) from June 24, 1987 to July 22, 1994. MANG denied Comerford medical care when he was injured in the line of duty ("ILD") on August 14, 1994. MANG illegally continued Comerford on AD after his injury without a consent affidavit. MANG subsequently falsified the line of duty investigation and other official documents and made misrepresentations to legislators in an attempt to cover up its activities and to intentionally deny entitlements to Comerford. MANG then unlawfully released Comerford from active duty without a Soldier Briefing and a Medical Evaluation Board ( "MEB"), and with ongoing medical problems. Comerford's allegations were entirely substantiated by the MANG Inspector General.

MANG retaliated against Comerford with adverse personnel actions for conducting protected communications with members of Congress, the Inspector General and Medical Treatment Facility commanders. MANG disregarded the findings of the Inspector General’s report. Comerford has been unlawfully released from MANG without any of the requisite due process, in violation of MANG regulations and in violation of Massachusetts General Laws. He continues to be denied medical benefits, pay and allowances, promotion and his now vested rights to a pension. He has exhausted all meaningful administrative remedies.

The plaintiff brings this action pursuant to G.L. ch. 12, Sec. 11I , G.L. ch.. 231A, G.L. ch. 249, Sec 5, and under the Massachusetts Whistleblower Protection Statute, G.L. c. 149, Sec. 185, and 42 U.S. C. Sec. 1983, seeking declaratory and injunctive relief, as well as damages and punitive damages against MANG, Robert D'Alto, and Raymond A. Vezina, in his individual capacity.

Plaintiff alleges that the defendants terminated Comerford's service as a member MANG because his continued presence in MANG and insistence upon receiving due process and compliance with the law threatened to reveal substantial and prolonged illegal staffing practices. His discharge, denial of benefits, and other retaliations were the result of willful disregard by the defendants of State and Federal law controlling MANG. Plaintiff also seeks attorneys' fees and cost's.

4. Defendant Robert E. D'Alto ("D'Alto"), is the Assistant Adjutant General stationed at headquarters in Milford, Massachusetts. He is sued in his individual capacity.

Orders

5. After Comerford was injured ILD on August 14, 1993, MANG improperly amended and extended Comerford’s active duty orders without his consent.
6. Instead of properly extending the order from September 15, 1993 to the "expected date of recovery", when Comerford could resume his "normal military duties", MANG only extended the order to September 30, 1993.
7. In so doing MANG denied Comerford entitled medical care, pay and benefits for his ILD injury after September 30, 1993.
8. However Comerford was engaged in Full time National Guard Duty ("FTNGD") during this time period.
9. MANG improperly extended Comerford’s active duty orders without his consent on September 15, 1993.
10. MANG improperly ordered Comerford to active duty for annual training, pursuant to 32 USC 503, without his consent from October 1, 1993 to December 31, 1993 with ongoing medical problems and without a the required medical evaluation board or line of duty investigation.
11. The act of returning an injured soldier to active duty on new orders after an injury is a "presumptive fitness for duty". This is because regulations require that a medical evaluation board determine that the injured soldier be able to resume his "normal military duties" before he is returned to active duty on new orders..
12. By improperly ordering Comerford to active duty on new orders before he was medically fit MANG stripped Comerford of the protections afforded by regulations to soldiers injured on active duty and effectively hid his injury from the National Guard Bureau and the Department of the Army.
13. MANG improperly released Comerford from active duty on December 31, 1993.
14. With a two day break in active duty, MANG reordered Comerford to active duty, on 5-day increments, for annual training, training and special work from January 3, 1994 to July 22, 1994 when MANG again released Comerford from active duty with ongoing medical problems and without a medical evaluation board.
15. MANG, by placing Comerford on active duty orders on 5-day increments after a two day break in active duty, prevented him from receiving entitled active duty medical care; and removed Comerford from the jurisdiction of the Active Duty medical doctor who had ordered Comerford to the hospital for "emergency" medical care.
16. MANG improperly carried and falsely reported Comerford as a part time member of a troop program unit from July 23, 1994 to December 7, 1998.
17. MANG improperly separated Comerford without due process and in violation of regulations, on December 7, 1998.
18. FTNGD is authorized solely pursuant to 32 USC 502(f) for the purposes of organizing, administering, recruiting, instructing and training the National Guard (See Army Regulation 135-18).
19. Comerford was charged with the foregoing tasks during this time period. However MANG falsely cited 32 USC 503 (authority to participate in field exercises) on Plaintiff’s active duty orders and falsely reported Comerford as participating in annual training, annual training support, training and special work during this time period and falsely reported the purpose of Comerford’s orders.
20. MANG made this fraudulent claim in order to circumvent a congressionally mandated cap on the number of FTNGD personnel. In so doing MANG increased its full time work force. In the process it denied Comerford entitlements, defrauded the federal government and misrepresented its FTNGD strength to Congress.
21. MANG also placed false information on official records and correspondence, to include officer evaluation reports, line of duty investigations, unit manning reports, unit rating chains, active duty orders and in Comerford’s personnel file, as to his unit of assignment or attachment, his duty status, medical status, his duty title and duty description in order to hide his presence on FTNGD from higher authority.
22. MANG improperly withheld these falsified documents from Comerford until forced to release them in response to Freedom of Information requests made by Plaintiff.
23. MANG has refused numerous legal and proper requests from Plaintiff to amend these records. In so doing MANG has ruined Comerford’s career and has taken away his ability to make a living.
24. The individuals in MANG who either requested, authorized or approved the fraudulent misuse of federal funds for FTNGD during this time period were Raymond A. Vezina and Robert E. D’Alto, now respectively the MANG Adjutant General and the Assistant Adjutant General.
25. These individuals risked exposure if Comerford’s case was properly referred to an active duty medical evaluation board.
26. In order to protect themselves Vezina and D’Alto falsely claimed that Comerford had been medically returned to duty after he was injured, denied that he was injured while on active duty, failed to refer his case to a medical evaluation board, denied Comerford medical care, pay, promotion and retirement and improperly released Comerford from active duty.
27. Subsequent to improperly releasing Comerford from active duty Vezina and D’Alto improperly carried and falsely reported Comerford as participating as a part time member of a troop program unit in order to cover-up that they had denied Comerford medical care. In fact Comerford had not been returned to duty by a MEB and had not participated in the troop program unit.
28. Defendants unlawfully terminated Comerford's service as a member MANG because his continued presence in MANG and insistence upon receiving due process and compliance with the law threatened to reveal substantial and prolonged illegal staffing practices.
Chronology

June 1987 to September 1994

29. Defendant had ordered Comerford to active duty pursuant to 32 USC 503 (authority to participate in field exercises) 22 times between June 8, 1987 to September 14, 1993 in violation of the United States Code and Army and National Guard regulations. Although the individual orders appeared to be for multiple, short, unconnected, temporary tours of active duty in reality the orders became a single, continuous, long, tour of duty for the illegal purpose of providing an additional support soldier to MANG.
30. Defendants, by illegally ordering Comerford to duty pursuant to 32 USC 503 not only made false claims to and defrauded the U.S. Government; but made false statements to and defrauded Comerford.
31. Army and National Guard Regulations, except under the most extraordinary circumstances, do not allow a soldier who is on active duty pursuant to 32 USC 503, for annual training, special work and training in order to participate in field exercises, to retire.
32. Retirement, promotion and employment rights are authorized pursuant to 32 USC 502(f) for National Guard support soldiers on FTNGD.
33. Comerford had accumulated well over 17 years of service when he was improperly released from active duty by Defendant. The "sanctuary zone" for retirement is 18 years. Defendant improperly released Comerford from active duty in order to avoid the embarrassment of Comerford claiming the entitled retirement benefits authorized pursuant to 32 USC 502(f) for active duty support soldiers when Defendant had illegally ordered, reported and funded Comerford on active duty pursuant to 32 USC 503.

August 1993 to December 1994

34. Comerford, and his immediate superior, LTC Richard Jackson, had raised questions as to his duty status, prior to his injury on August 14, 1993.
35. Defendants refused to resolve these questions. Comerford as documented in the line of duty investigation dated January 5, 1994, and other medical records, was suffering at that time from "extreme exhaustion" and "malaria" due to overwork by his superiors.
36. Comerford, as Commandant of a Reconnaissance-Commando School ("RECONDO"), was engaged daily in physically dangerous and strenuous activity as well as being responsible for the safety of his staff and students.

37. Comerford requested to be relieved of his duty due to illness; and also confusion as to his assignment and chain of command that had been brought about by the falsification of official records by MANG. His request was refused. Defendant’s refusal to allow Comerford to be relieved of his duties led directly to Comerford’s injury.
38. Comerford was subsequently injured in the line of duty while rescuing a fellow member of the National Guard in a cliff evacuation in Greenfield, MA on August 14, 1993.
39. Comerford had been suffering from exhaustion and malaria at this time.
40. Comerford looked "ill" and had "great difficulty traversing the terrain".
41. Comerford had been supervising a rappelling exercise on that date.
42. He was informed that one of the soldiers "was having great difficulty breathing and had a very faint pulse. The medic emphasized the need to get the soldier down the cliff as quickly as possible".
43. Comerford, the most experienced and senior soldier on site, volunteered to rappel down the cliff with the victim suspended beneath him.
44. Comerford descended the approximately 80-foot cliff with both his own and the victims weight supported by his abdomen.
45. Comerford, in order to give the victim a smooth ride, inverted on at a least one outcropping, by dropping his upper body to the ground with his feet pointing to the sky.
46. Comerford found himself experiencing heart attack symptoms. In actuality Comerford, according to the medical doctors, had ruptured himself, when he had inverted, and popped a portion of his stomach up into the esophagus.
47. This caused chest and left arm pain, shortness of breath by stomach acid entering the lung’s airways and burning of the esophagus lining.
48. Comerford reported the incident on August 14, 1993 and again requested to be relieved of his duties.
49. Instead of being commended for risking his life in order to save a fellow soldier his request was denied and he was ordered to perform dangerous and strenuous duty on the next day, a Sunday.
50. The next day, after duty, Comerford collapsed and was evacuated by ambulance to a civilian hospital.
51. Comerford reported to the military medical treatment facility on August 16, 1993 and was referred for hospital care.
52. Before Comerford could be transferred to the hospital, two senior officers, COL George I Blaisdell and LTC Donald E. Bailey, appeared at the facility and demanded that Comerford not receive medical care because he had "circumvented" the military system by being evacuated to a civilian hospital the night before.
53. The patient administrator, MAJ Mary E. Boudreno, denied that Comerford had circumvented the system and sent Comerford to the Hospital.
54. Defendants next failed to brief Comerford as to his rights and responsibilities within 48 hours of the incident as required by regulations
55. Defendants have never properly briefed Comerford as to his rights and responsibilities as a soldier injured ILD on an active duty tour of over 30 days.
56. This is particularly important in that there is a complex maze of benefits and responsibilities based on the soldier’s duty status at the time of the injury.
57. Comerford had been on continuous active duty since June 8, 1987 and he and his family were entitled to the same medical care, pay and benefits as an active duty soldier ( AR 135-381 and NGR 135-381). Defendant would deny these entitlements to Comerford and his family.
58. Comerford was placed on limited duty by the attending military doctor and was scheduled for surgery on September 22, 1993.
59. However Comerford’s active duty orders expired on September 15, 1993.
60. Defendants were required by regulation to either extend Comerford’s orders, with his consent to the date of a required active duty medical evaluation board , or to release him from duty with pay and allowances (See AR 135-381, NGR 135-381 and NGR 40-501).
61. Defendants in violation of 32 USC 502(a), AR 135-381 and NGR 135-381, extended Comerford’s orders, without his written consent and without approval from National Guard Bureau.
62. Defendants extended Comerford’s orders only to September 30, 1993; and not to the scheduled date of the medical evaluation board ,or the expected date of recovery as required by regulations.
63. Defendants illegally ordered Comerford, without his consent, to active duty on October 1, 1993, before he had recovered from surgery, while he had ongoing medical problems, and without a medical evaluation board, in violation of 32 USC 502(a), AR 40-3, 40-501, 135-381 and NGR 40-501 and 135-381.
64. Defendants improperly declared Comerford medically fit to return to duty on October 12, 1993 without proper disposition of Comerford’s case by military medical authority.
65. Defendant’s refusal and failure to provide Comerford with entitled medical care aggravated his injury.
66. Comerford experienced daily cardiac symptoms that could last for hours, for years after he was injured.
67. Defendants in a letter to Senator John F. Kerry dated June 6, 1997 stated that "It is inconceivable that Major Comerford has been unnecessarily suffering an illness for 3 ½ years when a simple medication could have cured him".
68. Numerous internal MANG records, obtained under FOIA, reveal that Defendants knew that Comerford was "unnecessarily suffering" and Defendants knew exactly what medication would have "cured him" .
69. What concerned Defendants was the cost of the medication, the administrative headaches involved in obtaining the medication and their determination not to properly order Comerford back to active duty for medical care.
70. On October 22, 1993 the medical treatment facility commander referred Comerford for further medical care. Defendants refused to provide medical care.
71. On October 24, 1993 the medical treatment facility commander referred Comerford to a hospital for "emergency" medical care "ASAP".
72. Defendants, in violation of the U.S. Code, Army and National Guard regulations refused to provide Comerford with medical care.
73. Comerford’s superior, LTC Jackson, told COL Robert E. D’Alto that Comerford was entitled by law to medical care and also to be retained on active duty until he had recovered.
74. COL D’Alto refused to provide Comerford with medical care.
75. LTC Jackson warned COL D’Alto that he was violation of law by not following the regulations.
76. LTC Jackson was subsequently transferred and retired.
77. COL D’Alto informed Comerford that Defendant Vezina did not like Comerford; and that neither Comerford, or the RECONDO School he had run, had a future in MANG.
78. Comerford was informed, however, that he would receive medical care once a line of duty investigation was completed.
79. Regulations do not prohibit medical care without a line of duty investigation.
80. In the meantime Comerford’s officer evaluation report, which had been due in August 1993, was withheld from him by Defendants, in violation of AR 623-105.
81. When Comerford complained of these illegal actions, senior MANG officers including Robert E. D’Alto, George I. Blaisdell and Donald E. Bailey claimed that Comerford was mentally ill.
82. AR 600-8-1 requires that the line of duty investigation be completed within 50 days of the incident by a disinterested officer appointed by the soldier’s commander.
83. LTC Bailey, who had attacked Comerford’s mental health, appointed himself, in writing, as the investigating officer for the line of duty investigation.
84. LTC Bailey who, according to the unit manning report was not assigned to the same unit as Comerford, took over 100 days to complete the investigation.
85. He failed to report that Comerford had been injured while on an active duty tour of over 30 days and hence eligible for active duty benefits.
86. LTC Bailey falsely reported that Comerford had been medically returned to duty on October 12, 1993.
87. LTC Bailey neglected to report that Comerford had been denied medical care, counseling and that he had been illegally retained on active duty without his consent or approval of National Guard Bureau.
88. LTC Bailey, on or about January 4, 1994, ordered Comerford to rewrite his statement of the incident; to leave out the cliff evacuation; and to begin the incident with his collapse.
89. LTC Bailey, in violation of AR 600-8-1, then withheld the report from Comerford.

Medical Evaluation Board

90. Army and National Guard regulations require that a soldier who is injured while on an active duty tour of more than 30 days be referred to an active duty medical evaluation board for disposition of his case within 4-months of the incident.
91. The regulations require that if a soldier’s orders are extended that they be extended to the date of the medical evaluation board.
92. However the active duty medical evaluation board is not controlled by the Defendants and one of the duties of the board is to determine the active duty status of the injured soldier at the time of the incident. Defendants had illegally placed Comerford on active duty before he was injured and then had illegally extended him on active duty without his consent.
93. In order to prevent the medical evaluation board from discovering the fraudulent misuse of federal funds, Defendants simply refused to refer Comerford’s case to an active duty medical evaluation board.
94. This action also enabled Defendant to slander Comerford by falsely claiming that he had been released from active duty because he was mentally ill.
95. On December 31, 1993 Comerford was again improperly released from active duty by MANG with ongoing medical problems and without a MEB.
96. Comerford was then improperly ordered to active duty in 5-day increments in order to prevent him from claiming active duty benefits and to prevent him from having non-emergency access to military treatment facilities.
97. This illegal action also removed Comerford from the jurisdiction of the medical treatment facility commander. It prevented the active duty medical treatment facility commander, who had ordered emergency medical care for Comerford, from intervening in Comerford’s case.
98. Comerford subsequently collapsed during the performance of his duty, was evacuated to the medical treatment facility emergency room and referred for medical care by military medical authority on or about March 31, 1994, April 16,1994, May 24, 1994, June 5, 1994, June 15, 1994 and June 30, 1994.
99. Defendants continued to refuse to properly place Comerford on active duty, provide medical care or refer his case to a medical evaluation board.
100. On or about July 15, 1994, Comerford again became ill while performing his duty.
101. This time, at the direction of LTC Bailey, he was evacuated not to the active duty medical treatment facility that had been following his case since September 1993; but to a National Guard facility that did not have Comerford’s medical records.
102. The National Guard doctor referred Comerford for medical care on both July 18 and 20, 1994 and ordered that his duties be limited to office work.
103. However Defendant did not like this order, and in a blatant example of interference in a purely medical decision, required that the National Guard doctor recommend that Comerford be released from active duty.
104. Defendant then improperly released Comerford from active duty for the final time on July 23, 1994 without a medical evaluation board and with ongoing medical problems.
105. In subsequent appointments with Army doctors, Comerford would not be able to receive entitled active duty medical care, because he was no longer on active duty.
106. Defendants quickly prepared a second line of duty investigation, dated August 16, 1993. Again using LTC Bailey as the line of duty instigating officer.
107. Defendants justified the improper removal of Comerford from active duty and his failure to provide Comerford with medical care by claiming he had been medically returned to duty as of November 14, 1993.
108. Defendants also falsely stated that it could not be "determined exactly what was wrong with MAJ Comerford". This line of duty investigation was, like the first investigation, also improperly withheld from Comerford.
109. Comerford complained of this improper treatment to his chain of command. In retaliation Defendant forwarded to Comerford on or about August 21, 1994 an improperly prepared officer evaluation report for the period ending on August 31, 1993.
110. This report falsely stated that Comerford was assigned to the Massachusetts Military Academy and questioned Comerford’s competence and loyalty.
111. The rater for the evaluation was LTC Bailey’s immediate subordinate.
112. The senior rater for the evaluation was COL George I. Blaisdell who had previously attacked Comerford’s mental health and who had acted to prevent Comerford from receiving medical care.
113. The report also falsely claimed that Comerford was not available for signature and that Comerford had prepared and forwarded to the raters an evaluation support form.
114. The administrative information concerning Comerford’s duty title, duty description, unit of assignment chain of command differed from information found in other official records.
115. The Military Academy Personnel Officer, MAJ Conway, in a signed letter stated that Comerford was not listed on the unit manning report for the Academy, that an evaluation support form had not been prepared at the beginning of the rating period; and that neither Comerford or his evaluators knew that he was to be evaluated by them until after the rating period had ended.
116. MAJ Conway affirmed that Comerford had refused to sign the evaluation, and validate the false administrative information.
117. MAJ Conway informed COL Balisdell of this; but he was directed to forward the evaluation anyway.
118. In addition, the Military Academy Personnel Clerk, SGT Taylor, also stated in a signed letter that Comerford had refused to sign the evaluation.
119. An evaluation is the single most important record in an officer’s personnel file. Although evaluations are grossly inflated, an evaluation questioning an officer’s loyalty, or a missing evaluation, will ruin his career.
120. This evaluation, which by regulation was required to have been forwarded to Comerford no later than October 1993, had been withheld and held over Comerford’s head as a threat for 12 months in order to ensure his silence over his mistreatment by Defendants.
121. In addition, Defendants also intentionally withheld the evaluation for the period from August 1993 to August 1994. This evaluation has yet to be forwarded to Comerford.
122. Defendants illegal actions in regard to evaluations have effectively ended Comerford’s career.
123. Comerford requested a commander’s inquiry pursuant to AR 623-105. Defendants refused Comerford’s request to conduct an inquiry into the improper evaluation.
124. Instead Comerford was informed that he would never be ordered to active duty by MANG again. This would prevent Comerford for qualifying for retirement.
125. As justification for this decision, a letter from COL Spirlet who was director of the Youth Civilian Conservation Corps, was cited.
126. In the letter COL Spirlet, a member of the State Police, claimed that Comerford had worked for the Corps, during the summer of 1994, as his only duty, and that he had, in effect, fired Comerford.
127. LTC Bailey in the line of duty investigation, dated August 16,1993, claimed that during the same time period that Comerford was not only working for the Military Academy; but that when he was determined medically fit for only office work that he had to be released from active duty.
128. There is no record that Comerford was ever assigned to or attached to the Youth Civilian Conservation Corps.
129. On or about September 1, 1994 National Guard Bureau in response to the second line of duty investigation dated August 16, 1994 asked MANG why Comerford had been "placed on orders while he was having an ongoing medical problem"?
130. National Guard Bureau had been falsely informed by Defendants in the first line of duty investigation dated January 5, 1994 as to Comerford’s medical and duty status.
131. Defendants had also illegally extended Comerford on active duty without his consent or National Guard Bureau’s permission.
132. Based on this false information, National Guard Bureau could not understand why Comerford, who they thought was not entitled to active duty medical care and benefits, was being retained on active duty while ill in 5-day increments.
133. On or about September 29, 1994 Defendant responded by falsely stating that Comerford had been returned to duty by his doctor on November 14, 1994 and that, although "MAJ Comerford had experienced a number of medical problems" he had been retained on orders at the Academy".
134. Defendants further stated that "because this was related to a prior LD, we had no choice but to keep him on orders".
135. Defendants did not bother to explain why the orders were in 5-day increments that prevented Comerford from receiving entitled medical care and benefits; or why Comerford was suddenly improperly released from active duty in July of 1994, when the National Guard doctor limited Comerford again to performing office work.
136. The only reason that Comerford was released from active duty was to prevent him from qualifying for an active duty retirement.
137. On or about December 13, 1994 the attending medical doctor at Walter Reed Army Medical Center after examining him, described Comerford as "essentially incapacitated"; and recommended continued medical care.
138. On or about December 21, 1994 Comerford requested that the MANG Inspector General conduct an investigation into this matter.
139. In retaliation Defendants on or about December 27, 1994 informed Comerford that he had "been found fit to return to normal duty status" by "Walter Reed Army Hospital".
140. The normal duty status mentioned was not active duty by which Comerford had supported himself and in so doing intended to earn a retirement; but a one weekend a month, 15 days in the summer part time status.
141. Defendant, misusing the MANG counter narcotics support operations section, had Comerford illegally investigated by officers from the New Bedford Police Department and the State Police.
142. These uniformed officers, one of whom was assigned to the same unit as COL Spirlet, in the course of their investigations told people that Comerford was "nuts" and that he had been released from active duty because he was mentally ill; and advised people to stay away from Comerford.

1995

143. On or about January 19, 1995 Defendants notified Comerford that pending final approval , he would receive incapacitation pay for the period from July 23, 1994 through December 31, 1994.
144. By regulation Comerford should have received a formal Soldier Briefing from his commander as to his rights and responsibilities, as an active duty soldier on a more than 30 day tour of duty, within 48 hours of his August 14, 1993 injury.
145. He has not been briefed as to such rights to this date.
146. He also should have been notified of the incapacitation pay; before the period started.
147. Comerford was not eligible for incapacitation pay.
148. He was eligible for either retention on active duty or release from active duty with full active duty pay and allowances.
149. Once his active duty orders had been amended and extended in by Defendants in September of 1993, he was no longer eligible incapacitation pay.
150. Defendants had made false statements to National Guard Bureau in two line of duty investigations and numerous other official documents as to Comerford’s medical and duty status and was determined to conduct a cover up by issuing Comerford incapacitation pay in lieu of active duty pay.
151. On February 2, 1995, Comerford was contacted by SGT Frank Gifford of the New Bedford Police Department.
152. SGT Gifford informed Comerford that an officer in his Department, who is also a member of MANG, had been directed by a MANG officer to investigate and submit a written report on Comerford.
153. The MANG officer who initiated the investigation of Comerford was identified as 1LT Thomas Leonard who was an active duty officer assigned to counter narcotics support operations.
154. On February 3, 1995 Comerford contacted the MANG Inspector General and complained of the MANG initiated police harassment.
155. The Inspector General took no action and directed Comerford to contact the MANG Staff Jude Advocate.
156. On February 7, 1995 Comerford was visited at his home by Defendant’s representatives. The purpose of the visit was to receive the long over due Soldier Briefing for his August 1993 injury and to sign documents for incapacitation pay.
157. Defendants had intentionally issued Comerford the wrong Soldier Briefing, thus depriving him of entitled benefits.
158. Comerford hand corrected the Soldier Briefing before he signed it , noting that he had been injured on August 14, 1993 while on active duty tour of more than 30 days. He also amended and signed the incapacitation pay information sheet to state that he understood that the incapacitation pay was for the period from July 23, 1994 through December 31, 1994.
159. Comerford again contacted the Staff Judge Advocate on February 15 and 28, 1995 and then again on March 10, 1995 complaining that he was being illegally investigated and harassed by the police at the instigation of MANG.
160. On March 23, 1995, Comerford was contacted by MAJ Henes from the Staff Judge Advocate office who stated that he had interviewed SGT Gifford of the New Bedford Police Department and that the activity in question would cease and would not happen again.
161. MAJ Henes also stated that 1LT Leonard would be counseled by LTC Murray.
162. However 1LT Leonard was promoted to Captain and transferred on an active duty tour to National Guard Bureau; and, although investigations of Comerford by the New Bedford Police Department ceased, a new one was started by State Police and continued at the instigation of Defendants.
163. On or about December 29, 1995 a member of the Department of State Police informed the Bureau of Professional Standards that SGT James M. Deyermond had claimed to have "called the hierarchy in the Military and was told that Major Comerford was not on active duty because he was a mental case". SGT Deyermond advised the Trooper to stay away from Comerford "because he was a nut".
164. Comerford had retained counsel in August 1995 to pursue his complaint against MANG through military administrative channels.
165. As a result the MANG Inspector General conducted an inquiry into the allegations that Comerford had made in December 1994. On or about February 7, 1996 the Inspector General prepared a report that substantiated the allegations as follows:

1. "Substantiated Allegation: MAJ Comerford was improperly released from active duty status prior to final medical determination returning him to normal military duties in violation of AR 135-381 and NGR (AR) 135-381."
2. "Substantiated Allegation: MAJ Comerford did not receive proper or adequate follow up medical care in violation of AR 40-3 and AR 135-381."
3. "Substantiated Allegation: That a Line of duty Investigation (LOD) regarding MAJ Comerford’s injury was improperly prepared and was not submitted in a timely manner in violation of AR 600-8-1".

37. The Report of Inquiry was forwarded to National Guard Bureau on or about March 22 , 1996. The Inspector General in his accompanying cover letter asked "What administrative actions if any can be applied to extend his AD Tour and if so for what duration?"
38. National Guard Bureau in a legal opinion dated May 9, 1996 found that it the responsibility of MANG "to formulate the nature of the relief".
39. The MANG formula of relief for Comerford was to improperly order him to return to a part time drill status on September 21, without a MEB, medical care, pay or benefits.
40. When Comerford failed to appear because he had not been cleared to do so by military medical authority he was declared AWOL.
41. On November 18, 1996 Comerford was examined by medical doctor at Walter Reed Army Medical Center. The doctor ordered medical care for Comerford and wrote that if after 2 – 3 weeks Comerford was doing better that he would place Comerford on limited duty. The doctor then scheduled Comerford for a medical procedure on January 7, 1997.
42. Defendants again refused to provide Comerford with medical care.
43. On or about December 20, 1996 MANG improperly determined Comerford fit for full duty and ineligible for medical care in defiance of the stated medical opinion of Walter Reed Army Medical Center and in violation of Army and National Guard regulations.
44. On or about February 29, 1997, almost a year after the MANG-IG had prepared his report of inquiry that substantiated Comerford’s allegations, Defendants wrote a personal letter to Senator John F. Kerry.
45. In this letter Vezina falsely stated that Comerford had received medical care and incapacitation pay "in accordance with regulations and directives". Vezina falsely stated that Comerford at the time of his injury had been "performing military duty in a combination of statuses". Vezina also falsely stated that "When it became clear that Major Comerford’s medical condition was long term, his status was changed to an Incapacitation Pay status, which provided pay and allowances under ADSW and AT status on a Monday thru Friday basis".
46. He further falsely stated that Comerford’s medical care "has not been affected by the change in status and up until December 18, 1996, his medical care continued".
47. Defendant Vezina failed to inform the Senator that the "medical personnel" at National Guard Bureau who reviewed Comerford’s case on December 18, 1995 and determined him fit for full duty consisted of a single nurse who did not have Comerford’s medical records.
48. Defendant Vezina also failed to mention that Walter Reed Army Medical Center had failed to return Comerford to limited duty on November 18, 1996; and that MANG had again refused to provide Comerford with medical care that had been ordered by WRAMC. Defendant Vezina also claimed again that Comerford was AWOL.
49. On or about March 25,1997 the MANG Inspector General informed Comerford that he was relieved of his duties until a MANG medical duty review board considered his case.
50. On or about April 25, 1997 the MANG medical duty review board found that Comerford was "not medically fit for continued service" and requested his case be "referred to an MEB with probable follow-on referral to a PEB."
51. However on or about May 2, 1997 Defendants cancelled a June 9, 1987 appointment for Comerford at WRAMC before a medical evaluation board.
52. On or about June 6, 1997 Defendant Vezina wrote a second letter to Senator Kerry. In the letter he again contradicted the findings of his own Inspector General in this case and of Walter Reed Army Medical Center.
53. He also informed the Senator that "Major Comerford will be carried in a leave status until we resolve his medical status and fitness for continued military duty".
54. On or about October 3, 1997 the Inspector General’s Report of Inquiry was released to Comerford by Department of the Army in response to a Freedom of Information Act request.
55. In response Defendants on or about December 22, 1997 stated that the report had been reviewed and directed that the Comerford’s active duty orders be amended; but only until April 15, 1994.
56. On or about January 13, 1998, MANG Inspector General issued a letter that summarized the findings of the Report. However no action was taken to refer Comerford’s case to a medical evaluation board, provide medical care or to return him to active duty.
57. The reason for this, according to a January 28, 1998 memorandum prepared by the MANG Staff Judge Advocate, was that MANG had already determined Comerford fit for full duty on December 20, 1996; and therefore he was not entitled to a medical evaluation board.
58. Comerford complained to the National Guard Bureau Inspector General and to his member of Congress.
59. In retaliation Defendants intentionally forwarded Comerford’s file to a Department of the Army promotion board.
60. This action was in violation of AR 135-91 and 623-105.
61. Defendant as a threat had improperly withheld all of Comerford’s evaluations since he was injured in August 1993. A single missing evaluation in a promotion packet will result in an officer being passed over for promotion. If an officer is not promoted he will be separated.
62. On or about September 3, 1998 Defendants informed Comerford, in contradiction to the findings of their own Inspector General, that they refused to amend the line of duty investigation.
63. This investigation falsely stated that Comerford had been medically returned to duty on October 12, 1993.
64. On or about September 10, 1998 Comerford was informed that the December 20 , 1996 decision that he was fit for full duty and ineligible for medical care would not be changed. This reiteration of false and improper determinations effectively blocked Comerford from receiving medical and referral to a medical evaluation board.
65. On or about September 17, 1998 Defendant issued illegal orders for Comerford, without his consent, to report to Walter Reed Army Medical center, under the authority as if attending a school.
66. Comerford advised MANG that the orders were illegal; and National Guard Bureau issued a legal opinion which found the orders not to be appropriate.
67. On or about September 29, 1998 MANG authorized Comerford to proceed, "with his consent" to Walter Reed Army Medical Center for a "medical evaluation".
68. Walter Reed Army Medical Center informed Comerford that MANG had not referred his case to a medical evaluation board; and that the "evaluation" was a 20 minute medical appointment.
69. Comerford was also informed that his case could not be referred to a medical evaluation board without a completed and proper line of duty investigation.
70. MANG had refused two weeks earlier to amend the line of duty investigation.
71. Comerford, under these conditions, refused to give his consent and requested that MANG properly amend the line of duty investigation. Comerford also requested that MANG amend and extend his original active duty orders in accordance with AR 135-381 and NGR 135-381 until such time as he appeared before a medical evaluation board. Comerford also asked that the case file be referred to the medical evaluation board in accordance with the findings of the MANG medical duty review board and Army and National Guard regulations.
72. Defendant did not respond to Comerford’s request.
73. Comerford then complained to the Department of the Army Inspector General and his Member of Congress.
74. In retaliation Defendant Vezina ordered Comerford to report to the November 1998 drill. Comerford requested to be excused from the drill in accordance with AR 135-91 and cited as documentary evidence the findings of the MANG medical review board that he was "not medically fit for continued service". Defendant improperly refused his request. Comerford then sent a facsimile to the Governor asking for assistance.
75. In retaliation Defendant Vezina, 5 days after the facsimile to the Governor, charged Comerford with theft of Government funds, false statements and false claims for taking pay from Phoenix USA, Inc. and simultaneously receiving incapacitation pay from MANG.
76. This was the same charge that Comerford had been illegally investigated for, at the instigation of Defendants, by the New Bedford and State Police in 1995.
77. Defendants had been unable to create a case against Comerford for "double dipping." In fact Comerford has not been employed by or received pay from a private company since about 1973.
78. Defendants then improperly ordered Comerford to report to the December drill.
79. Again Comerford requested to be excused in accordance with regulations; and again Defendant Vezina refused his excuse.
80. On or about December 7, 1998 Defendants, without due process, and in violation of Army and National Guard regulations separated Comerford from the service without a medical evaluation board and with ongoing medical problems.
COUNT I (G.L. ch. 12, Sec. 11I)  
81. The Plaintiff repeats and realleges all prior Paragraphs as if fully set forth herein..
82. The defendants engaged in a joint venture to interfere by threats, intimidation and coercion, with the plaintiffs' rights secured under the constitution of the United States and the Constitution and laws of the Commonwealth to petition the government for a redress of grievances, and to seek and obtain due process of law.
COUNT II G.L. c. 149, Sec. 185 (Massachusetts Whistleblower Protection Statute)
83. The Plaintiff repeats and realleges all prior Paragraphs as if fully set forth herein .
84. The defendant MANG is an "employer" subject to the restrictions of the Massachusetts Whistleblower Protection Act , G.L. c. 149 s. 185.
85. The defendants have taken retaliatory actions against the plaintiff because Comerford disclosed to the MANG and National Guard Bureau Inspector Generals, a Senator, a Representative, the Governor and others, unlawful practices of MANG and the two individual defendants.
86. Such retaliation against Comerford violated his rights as protected b y c. 149 s. 185.
87. As a result of all the above conduct Comerford has been injured. He has been stigmatized. His reputation has been damaged. His career has been ruined. He has suffered great emotional distress.
COUNT III 42 U.S.C. s. 1983
88. The Plaintiff repeats and realleges all prior Paragraphs as if fully set forth herein.
89. All of the above acts were taken under color of state law.
90. Defendants violated plaintiffs' rights secured under the constitution and laws of the United States and the Constitution and laws of the Commonwealth, to petition the government for a redress of grievances, and to seek and to obtain due process of law.
91. The foregoing acts of the defendants violated Plaintiff's rights as protected by.
COUNTS IV and V G.L. ch.. 231A, G.L. ch. 249, Sec 5
92. The Plaintiff repeats and realleges all prior Paragraphs as if fully set forth herein.
93. The defendants have refused to comply with their clear and unequivocable mandate under the law.
94. plaintiff has suffered a breach of his rights under the law. He will continue to suffer ongoing violations of his rights, absent the intervention of this Court.
95. An actual controversy has arisen and is specifically set forth in these pleadings .WHEREFORE, plaintiff respectfully requests that this Honorable Court:

1. Issue a declaratory judgment that MANG, and its members have acted unlawfully in denying plaintiff full time active duty pay and benefits from the time of his disabling injuring on August 14, 1993, until otherwise directed by a Medical Evaluation Board;
2. Enter an Injunction compelling the defendants to retain the plaintiff on active duty, over 30 days until further disposition by a Medical Evaluation Board, and restraining the defendants, and their agents, assistants, successors, employees, attorneys, and all persons acting in concert or cooperation with them or at their direction or under their control from further and future acts of harassment and retaliation against the plaintiff, for expression of protected speech;
3. Enter judgment against the defendants for damages and punitive damages in an amount to be determined by this Court, plus interest thereon;
4. Enter a judgment against the defendants for plaintiffs' costs, plus reasonable attorney's fees; and
5. Grant such other and further relief as it deems just and proper.

__S/__________________

Eric S. Maxwell

BBO# 557787

112 Shawmut Avenue

Boston, MA 02118

(617) 357-5800

I swear or affirm that I have read this Complaint and that it is true to the best of my knowledge, information and belief.

NOTARY PUBLIC: _________________

SIGNITURE OF NOTARY PUBLIC:____S/___________________

MY COMMISSION EXPIRES :________________________