UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

BRENT A. BURKE, 

 Petitioner - Appellant, 

v. 

ERICA NELSON, 

 Respondent - Appellee. 

No. 16-3314 

(D.C. No. 5:15-CV-03245-JWL) 

(D. Kan.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before HARTZ, O’BRIEN, and PHILLIPS, Circuit Judges. 

_________________________________ 

 The Commonwealth of Kentucky tried four times to convict Brent A. Burke of 

double murder. Four mistrials resulted. Then the United States Army charged and 

convicted Burke for the double murder. In a 28 U.S.C. § 2241 habeas corpus petition, 

Burke now argues that the Army lacked jurisdiction to try him and, further, that it 

violated his Fifth Amendment rights at trial. Burke is currently in custody at the United 

States Disciplinary Barracks in Fort Leavenworth, Kansas. Exercising jurisdiction under 

28 U.S.C. § 1291, we affirm the district court’s order denying Burke’s petition. 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals

Tenth Circuit 

April 4, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

I 

 On October 15, 2007, the Commonwealth of Kentucky arrested Burke for 

murdering his estranged wife and her former mother-in-law from an earlier marriage. At 

all relevant times, Burke was an active-duty sergeant in the Army. Starting in September 

2009 and ending in April 2011, Kentucky prosecuted Burke four separate times for the 

murders, each trial ending in mistrial—because of evidence mishandling, a sick 

prosecution witness, and then two hung juries. Never during these years of legal 

proceedings did Burke request a discharge from, or object to his continued enlistment in, 

the military. On May 20, 2011, in fact, five days before his May 25 Expiration of Term of 

Service (ETS) date, Burke sent a letter to his battalion commander stating his intent to 

remain in the Army. On June 29, 2011, after the fourth mistrial, state prosecutors 

dismissed the charges against Burke without prejudice. The next day, Kentucky released 

Burke into the custody of the United States Army. On July 8, 2011, the Army charged 

Burke with the murders and other associated crimes.

 On May 8, 2012, a court-martial panel convicted Burke of the two murders, 

burglary, child endangerment, and obstruction of justice. Burke was sentenced to life 

confinement without parole, as well as a reprimand, a reduction in rank to private, 

forfeiture of all pay and allowances, and a dishonorable discharge. During the appeals 

process, Burke first argued to the court-martial convening authority that the Army had 

lacked jurisdiction over him and had violated his Fifth Amendment rights by admitting 

into evidence at his court-martial his earlier statements to Kentucky police. The 

convening authority denied Burke relief. Burke then appealed to the Army Court of 
3 

Criminal Appeals (ACCA), raising multiple issues, including those premised on 

jurisdiction and the Fifth Amendment. After oral argument on the Fifth Amendment 

issue, the ACCA affirmed the core findings of guilt and the sentence.1

 Burke then 

submitted a Petition for Grant of Review to the Court of Appeals for the Armed Forces 

(CAAF), once again raising the Fifth Amendment and lack-of-jurisdiction issues, among 

a host of others. The CAAF denied Burke’s Petition. Finally, Burke turned to the federal 

courts and filed a Petition for Writ of Habeas Corpus in the District of Kansas. On 

September 14, 2016, the district court denied Burke’s Petition. Burke now appeals pro se, 

raising only the two well-litigated issues of military jurisdiction and the Fifth 

Amendment.2

II 

 Burke proceeds pro se on appeal, so we construe his pleadings liberally, but we do 

not serve as his advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). We 

review de novo the district court’s denial of habeas relief. Fricke v. Secretary of Navy, 

509 F.3d 1287, 1289 (10th Cir. 2007). But we generally limit our review of courtsmartial, which are military tribunals of special and limited jurisdiction, to two issues: 

(1) was military jurisdiction proper?; and (2) did the military give full and fair 

consideration to a petitioner’s constitutional claims? Id. at 1289-90. In reviewing the 

 1

 The ACCA dismissed one charge as an unreasonable multiplication of other 

charges. The United States had conceded the error. The dismissal did not change the 

sentence.

2

 The district court has already granted Burke in forma pauperis status for this 

proceeding. 
4 

military’s jurisdiction to hear the case, we make our own determination without affording 

any deference to the military court’s determination. Id. at 1290. But in evaluating the 

“full and fair consideration” standard governing constitutional claims, we deny claims 

that were briefed and argued before a military court, even if the result was summary 

dismissal. Watson v. McCotter, 782 F.2d 143, 145 (10th Cir. 1986). 

First, Burke claims that the military lacked the proper jurisdiction to try him. 

Court-martial jurisdiction did not attach to him, he says, until charges were preferred 

against him on July 8, 2011. By that time, he argues, because his ETS date had passed 

and because military regulations state that enlistment should end thirty days after an ETS 

date, he was no longer in the military and therefore beyond the reach of any courtmartial. 

But Burke is mistaken that he had a right to an automatic or constructive discharge 

from the United States armed forces. “[A]ll servicemen, ‘including those awaiting 

discharge after expiration of their terms of enlistment’ are subject to the Code of Military 

Justice.” Fricke, 509 F.3d at 1290 (quoting Desjardins v. Department of Navy, 815 F. 

Supp. 96, 98 (E.D.N.Y. 1993) (quoting 10 U.S.C. § 802(a)(1))). The statute governing 

military discharge makes clear that a member of the armed forces “may not be discharged 

or released from active duty until his discharge certificate or certificate of release from 

active duty . . . and his final pay or a substantial part of that pay, are ready for delivery.” 

10 U.S.C. § 1168(a). 

Burke attempts to counter this body of law by pointing to military regulations that 

he contends required his discharge before his court martial. In particular, he points to an 
5 

Army regulation providing that “[i]f charges have not been preferred, the Soldier will not 

be retained more than 30 days beyond the ETS unless the general court-martial 

convening authority approves retention.” Army Regulation 635-200, 1-22(b). Burke’s 

ETS date was May 25, 2011. He was not charged until July 8, 2011, more than thirty 

days later. 

But the regulation is not the only law applying here. Courts have already rejected 

any view that Regulation 1-22(b) provides an automatic discharge power. In United 

States v. Hutchins, 4 M.J. 190, 192 (C.M.A. 1978), the Court of Military Appeals3

acknowledged that the regulation obliges a court-martial convening authority to act when 

a service member is retained more than thirty days past his ETS date. Id. But it also 

concluded that the regulation “has no effect on court-martial jurisdiction.” Id. Military 

regulations must yield to Congressional requirements for military discharge. Id. And the 

language Congress used leaves no room for any self-enforcing discharge. See id.; 

10 U.S.C. § 1168(a). Burke’s citation to United States v. Russo, 1 M.J. 134, 135 (C.M.A. 

1975) does nothing to change this. As Hutchins noted, the defendant in Russo was never 

subject to the Code of Military Justice, because recruiter misconduct and failure to meet 

enlistment standards rendered the enlistment void from its inception. 4 M.J. at 192. Here, 

no one disputes that Burke’s enlistment was valid.4

 3

 The Court of Military Appeals (C.M.A.) later became the Court of Appeals 

for the Armed Forces (C.A.A.F.). 

4

 Burke also cites to an unpublished case from our circuit (which the district 

court cited), Williams v. Weathersbee, 280 Fed. Appx. 684, 686 (10th Cir. 2008), to 

further his automatic-discharge argument. Williams, based in part on a reading of the 
6 

Burke might have had a stronger argument had he timely objected to his retention 

in the military. See id. (“As no action was taken to separate the appellant from the service 

and appellant did not object to his retention, his military status was not terminated.”) 

(emphasis added). But he did not. As referenced, five days before his ETS date, he 

signaled his intention to re-enlist. He did not object to his military status until July 26, 

2011, eighteen days after the military had brought charges against him. And “a demand 

[for discharge] made after the preferral of charges is too late.” Id. at 191. But even a 

timely objection might not have been enough. In Dickenson v. Davis, 245 F.2d 317, 319 

(10th Cir. 1957), at least sixty days had elapsed between a service member’s request for 

discharge and charges being brought against him. We upheld court-martial jurisdiction 

because of the lack of formal discharge, noting that “the status of the accused as a soldier 

was unbroken and the charge against him was based upon an offense committed by him 

during his term of enlistment.” Id. That description applies equally well to Burke. 

In the armed forces, formalities matter. “Service in the military, whether by 

enlistment or otherwise, creates a status which is not and cannot be severed by breach of 

 

military’s court-martial manual, noted that military jurisdiction “once established 

while [the service member] is still a member of the military” can continue past an 

ETS date. Id. The implication being, Burke suggests, that if it did not attach before 

the ETS date, it cannot do so afterward. This is incorrect. First, as discussed, Army 

regulations cannot override Congress’s mandate that discharge not occur until the 

proper papers and final pay are ready for delivery. See 10 U.S.C. § 1168(a). Second, 

the Manual for Courts-Martial that Williams cited states elsewhere that court-martial 

jurisdiction “continues past [an ETS date] until a discharge certificate or its 

equivalent is delivered or until the Government fails to act within a reasonable time 

after the person objects to continued retention.” Rule 202(a)(2)(B)(i), Manual for 

Courts-Martial (2016 ed.). Burke never received discharge papers and never objected 

until after being charged. 
7 

contract unfortified by a proper authoritative action.” Id. Military inaction cannot 

substitute for the formalities that Congress has mandated for discharge. The bottom line 

is that “[w]hether [the military] should have discharged Petitioner or not, the fact remains 

that Petitioner was not discharged.” Fricke, 509 F.3d at 1290. Burke’s discharge papers 

and final pay were never ready for delivery. He remained a member of the military until 

his sentence that included a dishonorable discharge became final, and thus the military 

had proper jurisdiction to try him.5

III 

Burke next claims that his Fifth Amendment rights were violated when his 

statements from his interview with Kentucky State Police during the murder investigation 

were used against him at his court-martial even though he was not advised of his rights 

during questioning. We have no authority to delve into the substance of this claim. As 

mentioned, when it comes to court-martial rulings on constitutional claims, our review is 

sharply limited: so long as the claim was briefed and argued before a military court, we 

must deny the claim. Watson, 782 F.2d at 145. And here Burke made his Fifth 

Amendment argument before the convening authority of his court-martial, which 

received briefs, heard argument, and then found for the United States. Burke also briefed 

his Fifth Amendment claim in his appeal to the ACCA and that court heard arguments on 

 5

 Because we find that the military had jurisdiction over Burke even if his ETS 

date was May 25, 2011, we need not reach Burke’s preemptive argument against 

finding that his civilian confinement extended his ETS date. And because we hold 

that the military had proper jurisdiction even if jurisdiction did not attach until 

charges were preferred on July 8, 2011, we do not consider whether jurisdiction 

actually attached earlier due to a period of confinement or a military investigation. 
8 

the matter. The court then denied the claim in a written opinion. Burke briefed the issue 

again in his Petition for Grant of Review to the CAAF, which summarily denied the 

Petition. Those multiple layers of substantive military court review are more than 

adequate to foreclose our own review. See id. We conclude that Burke’s Fifth 

Amendment claim has already been fully and fairly considered and so deny it. 

We affirm the district court’s denial of Burke’s habeas petition. 

Entered for the Court 

Gregory A. Phillips 

Circuit Judge