§ Article 129 : Burglary; Unlawful Entry

Article 129 of the UCMJ (10 U.S.C. § 929) punishes breaking and entering a building or structure of another with intent to commit a UCMJ offense, and separately punishes unlawfully entering the real property of another, or personal property amounting to a structure typically used for habitation or storage.

Who It Applies To

Burglary: any person subject to the UCMJ who, with intent to commit an offense under the UCMJ, breaks and enters the building or structure of another.

Unlawful entry: any person subject to the UCMJ who unlawfully enters the real property of another, or personal property of another that amounts to a structure usually used for habitation or storage.

What It Covers

Burglary

1. The accused unlawfully broke and entered the building or structure of another.
2. The breaking and entering were done with intent to commit an offense punishable under the UCMJ.
3. Where alleged: the intended offense was one punishable under Article 118–120, 120b–121, 122, 125–128a, or 130.

Unlawful entry

1. The accused entered the real property of another, or certain personal property of another that amounts to a structure usually used for habitation or storage.
2. The entry was unlawful.

Key rules

• The article consolidates burglary, housebreaking, and unlawful entry. Burglary no longer requires a nighttime entry or a dwelling house.
• Breaking may be actual or constructive. Entering through an existing opening is not a breaking, but moving any obstruction needed to enter — such as opening a closed door or window — is. A constructive breaking includes entry gained by trick, false pretense, intimidation, or collusion with an occupant.
• Entry of any part of the body, even a finger, is enough, as is inserting a tool other than solely to facilitate the breaking or entry. An entry is unlawful if made without the consent of a person authorized to consent, or other lawful authority.
• A building includes a room, shop, store, office, or apartment. A structure is something in the nature of a building or dwelling, such as a ship’s stateroom or hold, an inhabitable trailer, an enclosed truck or freight car, a tent, or a houseboat. It need not be in use.
• For burglary, both the breaking and the entry must be done with intent to commit an offense inside. If an offense is committed afterward, the intent may be inferred. The intended offense need not be committed or attempted, and impossibility is not a defense.
• Unlawful entry requires neither a breaking nor an intent to commit an offense. Under the Manual, the protected personal property usually includes mobile homes and recreational vehicles, but usually not an aircraft, automobile, tracked vehicle, or locker; an intrusion into such property may, depending on the circumstances, be charged under Article 134.

Maximum Punishment

Maximum authorized punishment.

• Burglary with intent to commit an offense punishable under Article 118–120, 120b–121, 122, 125–128a, or 130: dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years.
• Burglary with intent to commit any other offense punishable under the UCMJ: dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.
• Unlawful entry: bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months.

Sentencing parameters. Burglary with intent to commit a listed offense, Category 3 (30–120 months). Burglary with intent to commit any other offense, Category 2 (1–36 months). Unlawful entry, Category 1 (0–12 months), with a recommended maximum of 6 months.

The newer sentencing rules apply, subject to the capital-case rules, when the accused is convicted only of offenses committed after 27 December 2023. See How UCMJ Sentencing Rules Apply. The maximum authorized punishment and the applicable sentencing framework do not predict the sentence in a particular case.

Related and Distinguished

Burglary requires breaking, entering, and intent to commit an offense inside; unlawful entry requires only an unlawful entry. The intended offense, such as larceny under Article 121, may be charged separately.

What the Provision Does

Article 129 separates burglary, which requires breaking and entering a building or structure of another with intent to commit a UCMJ offense inside, from unlawful entry, which requires no such intent. The maximum punishment for burglary depends on the offense intended.

History

Burglary appeared as Article 129 of the original 1950 UCMJ and was codified at 10 U.S.C. § 929 in 1956; it originally required breaking and entering the dwelling house of another in the nighttime with intent to commit an offense under Articles 118–128. Housebreaking was a separate offense under Article 130. The Military Justice Act of 2016 (Pub. L. 114-328, § 5442) rewrote Article 129, effective January 1, 2019, consolidating burglary, housebreaking, and unlawful entry (previously an enumerated Article 134 offense) and removing the nighttime and dwelling-house requirements.

Sources

• 10 U.S.C. § 929 (Article 129, UCMJ)
• Manual for Courts-Martial, United States, 2024 edition, Part IV, ¶ 79
• Manual for Courts-Martial, United States (2024 ed.), Appendix 12B and Appendix 12C
• Manual for Courts-Martial, United States (2024 ed.), Appendix 17 (Analysis of Punitive Articles)