Air Force Seeks to Avert Adultery Case Dogfight

WASHINGTON — Just two years ago, Kelly J. Flinn was on her way to becoming an Air Force icon, the first woman to qualify as the pilot of a B-52 heavy bomber and a symbol of the service’s progressive attitude toward women in uniform.

But Thursday, Air Force officials conferred with an attorney for Flinn, a 26-year-old first lieutenant, in an effort to find a way to close out the adultery charges that the service has filed against her--a case that appears to have boomeranged against the military in the court of public opinion.

The talks center on a compromise that would allow Flinn to resign from the service without facing the court-martial scheduled to begin Tuesday at Minot Air Force Base in North Dakota.

Sources close to the Air Force said that the service is anxious to avoid a trial but Flinn’s representatives said that the pilot is reluctant to sacrifice her military career and is still weighing her option of fighting the charges in the courtroom.

The route Flinn followed in going from an exalted status as the Air Force’s trophy of gender integration to defendant in a sordid outcropping of the Pentagon’s growing sex abuse scandal is littered with miscalculations and obstinacy on both sides.

The record shows that Flinn, who is single, ignored warnings to end an affair with a married civilian and passed up at least one attempt by her superiors to settle the matter quietly. But the same record shows that after Flinn failed to obey an order to end her relationship with Marc Zigo, a civilian married to an enlisted woman at the Minot base, the Air Force plunged ahead with the type of prosecution that typically the military avoids.

In a signal that the service is ready to make a deal, Air Force Secretary Sheila E. Widnall told associates, including at least one member of Congress, that she will give Flinn the option of resigning. Air Force officials said that the procedure--known by the military acronym RILO for “resign in lieu of”--is used frequently to settle cases without courts-martial.

Under the Uniform Code of Military Justice, the defendant must make the first move by applying for permission to resign. Then it is up to the service secretary to accept or reject the offer and, if accepted, to decide if the discharge will be honorable or less than honorable and if other conditions should be imposed.

Unlike civilian prosecutors, who frequently settle criminal cases with plea bargains, the military authorities are not permitted to urge a defendant to resign. But when the New York Times reported Thursday that Widnall would consider the RILO procedure, Air Force spokesmen readily confirmed that it was a regular feature of military law, seemingly inviting Flinn to take the necessary first step.

“We learned about this when we picked up the newspaper,” a spokeswoman for Flinn said Thursday. “Our attorney is contacting the Pentagon.”

The spokeswoman added that Flinn wants to know what conditions Widnall plans to impose before deciding whether she will resign.

Flinn, her family and friends clearly have raised the cost of the prosecution to the Air Force. Through strategically placed newspaper and television interviews, she has laid out her side of the case. Her family has retained a civilian public relations agency in Atlanta and a cousin has fashioned an Internet Web site that includes biographical information, a compilation of news stories about the case and a long account of the World War I exploits of her grandfather, an Army sergeant who saw extensive action in France. It also invites contributions to the Lt. Kelly J. Flinn defense fund.

Adultery has been considered a crime by the military since the Revolutionary War. But at a time when most civilian laws against consenting extramarital sex have been repealed or allowed to go unenforced, the Pentagon is coming under increasing pressure to get rid of a statute that strikes many as outdated.

The Pentagon says that it needs the law because adultery undermines morale and military cohesiveness. Commanders say that they do not want to go into combat with soldiers who hate each other because one has had sex with the other’s wife. But the Flinn case seems to have almost none of the overtones that supporters of the law like to cite. And, from the Air Force’s standpoint, it may prove the legal dictum: “Tough cases make bad law.”

The basic facts of the case are not much in dispute. Flinn admits to engaging in an affair with Zigo. She says that he told her he was seeking a divorce from his wife, a statement that he later conceded was a lie. She also admits to a brief fling with an enlisted airman not in her chain of command, resulting in a charge of “fraternization.”

Flinn faces a more serious--but undeniably derivative--offense of disobeying a lawful order from her commander, Lt. Col. Theodore LaPlante, who directed her not to “go within 100 feet” of Zigo or his residence. She is also accused of lying to LaPlante by telling him that her relationship with Zigo was not sexual.

An Air Force spokesman said that LaPlante’s order indicates the commander “tried to handle it at a lower level” without filing criminal charges. The spokesman said that the Air Force considers the insubordination charge to be the most serious one facing Flinn.

Flinn responded in a series of published and broadcast interviews that Zigo was living in her rented house at the time the order was issued, so there was no way she could have abided by it even if she had wanted to do so. However, she also has said that she really did not want to kick him out because she feared that her military career was already in ruins and she hoped to preserve her relationship with him.

Later, after Zigo testified against her, admitted that he was not getting a divorce and confessed to other deceptions, Flinn says she realized that she had been used.

Of course, most adultery is not prosecuted, even in the military. Officials conceded that charges are usually brought only when somebody complains and, even then, most cases are resolved without trial.

According to Air Force statistics, 60 men and seven women were court-martialed by the Air Force last year on charges that included adultery. That was 7% of the service’s entire court-martial caseload for the year and the highest figure in more than a decade.

On Thursday, the Flinn camp said that it was deluged with offers of encouragement and with checks for the defense fund. Some of the calls, a friend said, came from former military personnel asserting that adultery was far from uncommon.

Flinn graduated in the top 15% of her class at the Air Force Academy in 1993. Her standing in her post-graduate flight training class was high enough to give her a choice of assignments. She picked flying the B-52 and was rated “exceptionally qualified” after training on the lumbering eight-engine bomber.