UCMJ Article 129: Burglary and Unlawful Entry
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Burglary under Article 129 is breaking and entering another’s building or structure with intent to commit any UCMJ offense inside, at any hour and in any kind of building. Unlawful entry needs neither a breaking nor any intent. Burglary carries up to 10 years if the intended offense is one of the serious offenses the Manual lists, and 5 years otherwise. Unlawful entry carries up to a bad-conduct discharge and 6 months.
Breaking and entering, or simply entering
Under 10 U.S.C. § 929:
- (a) Burglary. A person who, “with intent to commit an offense under this chapter, breaks and enters the building or structure of another.”
- (b) Unlawful entry. A person who unlawfully enters “the real property of another” or “the personal property of another which amounts to a structure usually used for habitation or storage.”
The article “combines and consolidates the crimes of burglary, housebreaking, and unlawful entry.” There is no nighttime requirement, and the structure need not be a dwelling (Manual for Courts-Martial (2024 ed.), Part IV, ¶ 79.c(1)).
Breaking, actual or constructive
Under ¶ 79.c(2):
- Not a breaking: entering through a hole already in a wall or roof, or through an open window or door.
- A breaking: opening a closed door or window; opening wider a door or window already partly open but not enough to enter; cutting out window glass or screen netting; moving any obstruction without which entry was impossible.
- Inner doors: breaking an inner door counts, even by someone who entered the house lawfully, but burglary requires that it be followed by entry into that room with the required intent.
- Constructive breaking: entry gained by trick (hiding in a box), false pretense (posing as a gas or telephone inspector), intimidating occupants into opening the door, collusion with an occupant, or descending a chimney, “even if only a partial descent is made.”
Entry: a finger is enough
An entry is required, “but the entry of any part of the body, even a finger, is sufficient” (¶ 79.c(3)). Inserting a tool also counts, unless it is inserted solely to make the breaking or entry possible. An entry is unlawful if made without the consent of a person authorized to give it or other lawful authority.
Buildings and structures
“Building” includes a room, shop, store, office, or apartment within a building. “Structure” means something in the nature of a building or dwelling: the Manual lists a stateroom, hold, or other compartment of a vessel, an inhabitable trailer, an enclosed truck or freight car, a tent, and a houseboat. The building need not be in use at the time (¶ 79.c(4)).
Intent at the moment of entry
Both the breaking and the entry must be done with intent to commit a UCMJ offense inside (¶ 79.c(5)(a)). If the accused commits an offense after entering, it may be inferred that the intent existed at entry. The intended offense need not be committed or even attempted, and impossibility is no defense: an accused who enters a house intending to murder a resident who is not home may still be guilty of burglary.
Unlawful entry requires neither a specific intent nor a breaking (¶ 79.c(5)(b)).
Cars, aircraft, and lockers
For unlawful entry, protected personal property means property that amounts to a structure usually used for habitation or storage, which “would usually include vehicles expressly used for habitation, such as mobile homes and recreational vehicles” (¶ 79.c(6)). It “would usually not include an aircraft, automobile, tracked vehicle, or a person’s locker.” Depending on the circumstances, an intrusion into those may instead be charged under Article 134, the general article.
10 years, 5 years, or 6 months
From ¶ 79.d:
| Offense | Maximum |
|---|---|
| Burglary with intent to commit an offense under Articles 118-120, 120b-121, 122, 125-128a, or 130 | Dishonorable discharge, forfeiture of all pay and allowances, 10 years |
| Burglary with intent to commit any other UCMJ offense | Dishonorable discharge, forfeiture of all pay and allowances, 5 years |
| Unlawful entry | Bad-conduct discharge, forfeiture of all pay and allowances, 6 months |
By section heading, the articles in the higher tier are: murder, manslaughter, death or injury of an unborn child, child endangerment, and rape and sexual assault (118 through 120); rape and sexual assault of a child, other sexual misconduct, and larceny and wrongful appropriation (120b through 121); robbery (122); kidnapping, arson, extortion, assault, and maiming (125 through 128a); and stalking (130).
The intended offense and a death during burglary
“If the evidence warrants, the intended offense may be separately charged” (¶ 79.c(5)(a)). A burglary to steal can carry a larceny charge under Article 121 as well. A killing during the perpetration or attempted perpetration of burglary is murder under Article 118(4). Unlawful entry is the Manual’s example of an offense necessarily included in burglary because one element is “legally less serious” (Article 79).
Sources
- 10 U.S.C. § 929, Article 129, Burglary; unlawful entry (Cornell LII)
- Manual for Courts-Martial, United States (2024 ed.), Part IV, ¶ 3.c(2) and ¶ 79
General information about military law, not legal advice for any individual case.