THE RULES OF ENGAGEMENT

By DAVID VAN BIEMA

In the final chapters of the Kelly Flinn saga, Air Force officials went to great lengths to suggest they were not engaged in an airborne rewrite of The Scarlet Letter. The issue of infidelity may have dominated the drama's coverage, but as Air Force spokesman Joseph LaMarca insists, "Adultery is the least important charge in this whole case. There were significant breaches of official conduct," including disobeying a direct order.

Perhaps so. But for the public and its elected representatives, the issue with which Flinn launched her publicity blitz was the one that commandeered the imagination. Citizens who couldn't bridge the ever widening distance between the mores of the civilian world and those of the military, bombarded call-in shows with invocations of the right to keep the government out of the bedroom. In fact, the Air Force, in its treatment of Flinn's transgressions and its prosecution of adultery courts-martial, may be more nuanced than it originally got credit for. But unlike the Army and Navy, it is bringing increasing numbers of cases: 67 in 1996, up from 42 in 1992.

Technically, mere infidelity is not illegal in the military. True, there have been rules against it for more than 200 years. But Article 134 of the Uniform Code of Military Justice prohibits adultery only when it is prejudicial to "good order and discipline" or will "bring discredit upon the armed forces." For more than two centuries, millions of American servicemen honoring military tradition in bordellos around the globe were not deemed thus prejudicial; they worried more about disease than about prosecution. Many Air Force pilots today continue to salute each other with the phrase "Wings up, [wedding] rings off." Some of those assigned to TDY, or temporary duty, on distant bases still keep civilian "TDY wives" in addition to their real ones.

This arrangement has been complicated by the influx of tens of thousands of women into the armed forces since the early 1980s. Many married service members have chosen to cheat with one another instead of using prostitutes. Linda Bird Francke notes in her new book, Ground Zero, that 64% of the Air Force personnel responding to a Roper Poll of Gulf War units reported sexual activity in their squads. Not that it bothered them: 77% of the Roper respondents said it had little or no effect on readiness for battle. Yet the brass has been unconvinced, especially when fraternization--the extracurricular association of officers with enlisted personnel--was involved. Fraternization was outlawed even when it referred primarily to poker games between lieutenants and grunts. Today commanders face nightmare scenarios of officers using rank to extort sex, of favoritism and jealousy eating away at the chain of command and hard-won troop morale, of subordinates wondering if their officer sent them on a particularly dangerous mission to avoid assigning it to a lover. Very few courts-martial involve adultery alone: frequently it is coupled with fraternization.

Fraternization rules vary from service to service. An Army pamphlet states that "dating between soldiers of different rank is not harmful, and usually not improper." On the Navy's first coed carrier to include servicewomen, the U.S.S. Dwight D. Eisenhower, couples who confessed their love to the captain quietly received new assignments, without repercussion. The Air Force takes a different attitude. Although a manual allows that a marriage between an officer and enlisted person "is not, by itself evidence of misconduct," it reserves the right to take punitive action "based on prior fraternization."

That would seem to be clear-cut if harsh. But complicating the issue is the fact that adultery and fraternization cases are handled at the discretion of the commander, who has a spectrum of choices running from friendly counseling through informal warning, fines, reprimands, demotions and courts-martial. This sustains authority and flexibility but invites caprice and prejudice. Air Force defenders point out that the branch's statistics on adultery courts-martial betray little sexual bias, reflecting almost exactly the male-to-female ratio of the force. But observers contend that women, once investigated, draw harsher noncriminal penalties. According to one seasoned pilot (in a custom dubbed by others "different spanks for different ranks"), the "higher the person who commits the offense, the less happens to him." Critics cite the cases of Rear Admiral Ralph Tindal, who in 1995 was fined, demoted and confined to quarters for 30 days after an affair with a petty officer, and Lieut. Lisa Kelly, who, after liaisons with two enlisted men, had to plea-bargain to avoid a 19-year prison sentence.

Then there is the nature of the adultery investigations. The Air Force's office of special investigations observes a kind of "Don't ask, don't tell" policy: it will not look into a case until someone--usually the cheated-on spouse--calls attention to it. But once activated, the OSI, as Flinn discovered, is very, very thorough, researching such items as foreplay, favorite positions and birth control. Relatives have learned for the first time of their loved one's infidelities from investigators inquiring about his or her sexual habits. In one such instance, reported in the Washington Post, the 78-year-old mother of Lieut. Colonel Karen Tew became fed up with their probing and finally told them "I didn't know and why didn't they just ask her." Tew, who was married, eventually pleaded guilty to an affair with an enlisted man; she was dismissed from the service last March, a year shy of retirement, and committed suicide five days later.

There will be more delicate cases in the future. The Army has reduced its number of adultery-related courts-martial from 95 in 1992 to 81 last year; the Navy from 27 in 1995 to 15. But the Air Force will probably keep moving in the opposite direction, according to Northwestern University military sociologist Charles Moskos. The Air Force is the most civilianized (only 20% of its members fly planes) and feminized (26% of its new recruits are women) of the services, and its generals are notoriously sensitive lest their troops become indistinguishable from those of, say, a civilian corporation--and equally unfit to fight a real war. An Air Force colonel who served in the Persian Gulf and Somalia apprehensively contemplates the worst: "If each member is worrying about whether the officer next to him is getting special treatment because she is sleeping with the commander, you won't be prepared for the enemy. Or worse, you'll commit mistakes on your own."

The Flinn case has enlarged the battalion of civilians who would like to meddle in the military's judicial system and its treatment of the sexes. Critics include those lambasting the adultery rules as too strict and the 119 House members co-sponsoring a bill banning mixed-sex basic training. In the end, it may be best to let the generals and admirals, exploring unknown territory, figure it out for themselves. Speaking in her personal capacity, Captain Rosemary Mariner, the Navy's first woman tactical-jet pilot and the first female commander of an aviation squadron, suggests that the approach seems to have worked so far in her branch of the service. "When I came in 24 years ago, there was rampant sexual misconduct," she recalls. "Prosecutions were inconsistent and differed from command to command. But now the commanders are beginning to be more consistent and fair in enforcing the regulations, and even senior officers are being disciplined."

Mariner is not happy with Flinn's negotiated discharge. Like many in the military, she believes that the bomber pilot manipulated public opinion to bypass an established if flawed system of justice. But as the military rules of romantic engagement grate repeatedly against our current excruciating sensitivity about gender and power, the rulemakers may increasingly find themselves factoring the public into their deliberations.

--Reported by Sally B. Donnelly and Douglas Waller/Washington and John F. Dickerson/Minot Air Force Base

With reporting by SALLY B. DONNELLY AND DOUGLAS WALLER/ WASHINGTON AND JOHN F. DICKERSON/MINOT AIR FORCE BASE