UCMJ Article 129: Burglary and Unlawful Entry

Forced entry into another person’s space sits at the intersection of two harms: the violation of a protected place and the criminal purpose that animates the intrusion. Article 129 of the Uniform Code of Military Justice draws that line. Codified at 10 U.S.C. 929 under the title “Burglary; unlawful entry,” it now reaches two distinct wrongs in a single article. The first is burglary, the deliberate breaking and entering of another’s building or structure in order to commit a crime inside. The second is unlawful entry, the simple intrusion into another’s property without authority. The pairing is recent. The 2016 Military Justice Act, effective 1 January 2019, consolidated the unlawful entry offense into Article 129 and modernized the burglary definition, so a description of the current article must account for both halves and must not import the older common law assumptions that no longer apply.

What the article actually covers

Two offenses live in Article 129, and they differ in seriousness because they differ in what the government must establish.

Burglary, under subsection (a), is the more serious. It punishes any person subject to the code who, with intent to commit an offense under the code, breaks and enters the building or structure of another. Three ideas carry the weight here: a breaking, an entry, and a criminal intent that exists at the moment of entry. The intended crime does not have to be completed, and nothing needs to be taken. The offense is finished when the accused crosses the threshold by force with the unlawful purpose already formed.

Unlawful entry, under subsection (b), is the lesser offense. It punishes a person who unlawfully enters the real property of another, or the personal property of another that amounts to a structure usually used for habitation or storage. There is no requirement of force and no requirement of criminal intent at entry. The wrong is the unauthorized intrusion itself. That difference, intent versus no intent and force versus no force, is what separates a burglary charge from an unlawful entry charge built on the same physical act of going somewhere one is not allowed to be.

A point of currency matters. Older descriptions of military burglary, drawn from the common law, required that the breaking and entering occur in the nighttime and that the structure be a dwelling. The current statute carries neither limitation. Burglary under Article 129 can occur at any hour and reaches buildings and structures generally, not only homes. Sources that still recite a nighttime element are describing a prior version of the law.

What the government must prove

For burglary, the prosecution must prove that the accused broke and entered the building or structure of another, and that at the time of the breaking and entering the accused intended to commit an offense punishable under the code. Each component does specific work.

A breaking requires the application of some force to gain entry, though the force can be slight. Pushing open a closed door, raising a closed window, picking a lock, or removing a screen will satisfy it, while walking through an already open door generally will not. The law also recognizes a constructive breaking, where entry is gained by fraud, trick, or threat rather than physical force.

An entry occurs when any part of the body, or an instrument used to carry out the intended offense, passes into the structure. The slightest intrusion completes this element.

The structure must belong to another. Breaking into one’s own property is not burglary, which is why a genuine claim of ownership or right to enter goes to the heart of the offense rather than serving as a mere excuse.

The intent is the decisive element and the one most often contested. It must exist at the moment of the breaking and entering, not form afterward. A person who enters without criminal purpose and only later decides to commit a crime inside has not committed burglary, although other offenses may apply. Because intent is a state of mind, the government usually proves it circumstantially, through items carried in, property handled or taken, statements, or the surrounding facts of the entry.

For unlawful entry, the proof is narrower. The government must show that the accused entered the real property of another, or personal property of another amounting to a habitation or storage structure, and that the entry was unlawful, meaning without right or authority. Neither force nor criminal intent need be shown. This is why unlawful entry frequently appears as a lesser included offense when the evidence of breaking or of intent at entry falls short of what burglary demands.

Maximum punishment

The authorized maximum depends on which offense is charged and, for burglary, on the seriousness of the intended crime.

For burglary committed with intent to commit a general offense under the code, the maximum punishment is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for five years. When the burglary is committed with intent to commit one of the more serious enumerated offenses, the ceiling rises. Where the intended offense is one punishable under the murder, sexual assault, robbery, kidnapping, arson, or aggravated assault provisions identified in the Manual, the maximum confinement increases to ten years, with the dishonorable discharge and total forfeitures remaining available. The logic is that the gravity of the crime the intruder meant to commit aggravates the intrusion itself.

For unlawful entry, the maximum punishment is a bad-conduct discharge, forfeiture of all pay and allowances, and confinement for six months. The far lower ceiling reflects the absence of both force and criminal intent.

For offenses committed on or after 27 December 2023, the military judge imposes the sentence in non-capital general and special courts-martial, working within sentencing parameters rather than from a single fixed maximum applied at a panel’s discretion. Burglary with intent to commit a serious offense falls within a higher sentencing category under the current parameters, while the lesser forms sit lower. The statutory ceilings remain the authorized limits, but the confinement range actually available in a given case should be confirmed against the controlling Manual for the date of the offense.

Defenses

Because the offense turns on unauthorized entry and, for burglary, on intent, the defenses tend to attack one of those pillars.

Consent is a complete answer to the unauthorized element. Entry permitted by the owner or a person with authority over the structure is not unlawful, and so is neither burglary nor unlawful entry. A related question arises when the accused had permission to enter but exceeded its scope, by entering a restricted area or for a forbidden purpose. Whether that conduct supports an Article 129 charge depends on whether the entry into the relevant space was truly unauthorized and, for burglary, whether a breaking and contemporaneous criminal intent can still be shown.

Mistake of fact about ownership can negate the “of another” element. A person who genuinely and reasonably believed the structure was their own, or that they had a right to enter, lacks the culpable state the offense requires.

For burglary specifically, the most common contest is over intent. Evidence that the accused formed any criminal purpose only after entering, or never formed one at all, defeats burglary even if an unauthorized entry occurred, and may leave only the lesser unlawful entry offense. Voluntary intoxication, while not a free pass, can be relevant to whether the accused actually held the specific intent burglary demands.

How it is charged and related offenses

Article 129 sits among several offenses that punish intrusions and the crimes that accompany them, and charging decisions sort conduct by the evidence available. Burglary is the fit when the government can prove both a breaking and a criminal intent present at entry. When force is absent or intent at entry cannot be shown, the unlawful entry branch of the same article, or another offense, may better match the proof.

The intended crime inside is charged separately. A burglary committed to steal will commonly accompany a larceny specification under Article 121, and a burglary committed to assault will accompany the relevant assault specification, because Article 129 punishes the entry-with-intent while the completed crime is its own offense. Damage caused in the course of entry may implicate property offenses, and an entry into a military structure such as an arms room or supply facility may draw additional charges tied to the security and property interests at stake. The relationship among these provisions is additive rather than exclusive: a single intrusion can generate a burglary specification plus specifications for the crimes the intruder set out to commit.

Sources

• 10 U.S.C. 929, Article 129, Burglary; unlawful entry: https://law.cornell.edu/uscode/text/10/929
• 10 U.S.C. 929, Article 129 (current text via the Office of the Law Revision Counsel): https://uscode.house.gov
• Manual for Courts-Martial, United States, Part IV (Punitive Articles), Article 129: https://jsc.defense.gov

This article is for general informational purposes only and is not legal advice. It describes military law and procedure of public record, does not address any individual case, and does not create an attorney-client relationship.