UCMJ Article 129: Burglary

For most of its history, burglary in military law carried the old common-law trappings: it had to involve a dwelling house, and it had to happen at night. That is no longer the case. The Military Justice Act of 2016, effective January 1, 2019, modernized Article 129 of the Uniform Code of Military Justice and eliminated both the dwelling requirement and the nighttime requirement. The current offense is broader and more straightforward, reaching the unlawful breaking and entering of any building or structure with the intent to commit an offense inside.

This guide describes the modern Article 129 burglary offense, the elements the government must prove, the maximum punishment, recognized defenses, and how burglary differs from the unlawful entry offense that shares the same article. It reflects the current statute, not the pre-2019 version that older sources still describe.

What Changed in 2019

Anyone reading older material on military burglary will encounter references to “dwelling house” and “nighttime.” Those elements were removed. Under the current statute, burglary no longer depends on the type of structure or the time of day. What remains essential is the unlawful breaking and entering of a building or structure of another, paired with the intent to commit an offense under the UCMJ once inside.

The Elements of Burglary

To convict under Article 129(a), the prosecution must prove:

  1. That the accused broke and entered the building or structure of another.
  2. That the breaking and entering was unlawful.
  3. That, at the time of the breaking and entering, the accused intended to commit an offense under the UCMJ inside.

“Breaking” can be satisfied by minimal force, such as opening a closed door or window, even one that is unlocked. The intent to commit an offense must exist at the moment of entry. An intent that forms only after a person is already lawfully or unlawfully inside does not satisfy this element of burglary, though it may support a different charge.

What the Government Must Prove

The government must prove an actual breaking and entering of a building or structure belonging to another and that the entry was unlawful, meaning without consent or other legal authority. Critically, it must prove that the accused already intended to commit a UCMJ offense at the time of entry. Burglary is complete upon that unlawful entry with the requisite intent; the intended offense need not be carried out. Evidence of the contemporaneous intent, such as tools, statements, or the surrounding circumstances, is often central to the case.

Maximum Punishment

The maximum punishment for burglary depends on the offense the accused intended to commit. Where the intended offense is one of the more serious enumerated offenses identified in the Manual for Courts-Martial, burglary carries a maximum of a dishonorable discharge, forfeiture of all pay and allowances, and confinement for ten years. Where the intended offense is any other UCMJ offense, the maximum is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for five years. The maximum is a ceiling set by the Manual, and an actual sentence depends on the facts, the forum, and the sentencing rules applicable to the date of the offense.

Defenses

Defenses to a burglary charge commonly include:

  • Consent: That the accused had valid consent to enter from someone with authority to give it, making the entry lawful.
  • No intent at entry: That the accused did not intend to commit any offense at the time of entry, even if conduct inside later became unlawful.
  • No breaking and entering: That the government cannot prove an actual unlawful breaking and entering of a building or structure.
  • Mistaken identity: That the accused was not the person who committed the entry.

Distinctions From Unlawful Entry

Article 129 contains a second, lesser offense: unlawful entry. Unlawful entry, addressed in Article 129(b), reaches the unlawful entry into the real property of another, or into certain personal property of another that amounts to a structure usually used for habitation or storage. The defining difference is intent. Burglary requires the intent to commit a UCMJ offense at the time of entry; unlawful entry does not. A person who enters a structure unlawfully but without that contemporaneous criminal intent may be charged with unlawful entry rather than burglary.

Burglary should also be distinguished from offenses that may be the object of the intended entry, such as larceny or assault. Those are separate offenses, and the burglary charge addresses the unlawful entry with criminal intent, independent of whether the intended offense was completed.

Frequently Asked Questions

Does burglary still require a dwelling or nighttime entry?
No. The Military Justice Act of 2016, effective January 1, 2019, removed both requirements. Current burglary reaches any building or structure at any time of day.

Does the intended offense have to be completed?
No. Burglary is complete once there is an unlawful breaking and entering with the intent to commit a UCMJ offense. The intended offense need not be carried out.

What counts as “breaking”?
Breaking can be minimal. Opening a closed door or window, even an unlocked one, can satisfy the element. Force or damage is not required.

When must the criminal intent exist?
The intent to commit an offense must exist at the time of entry. An intent that forms only after entry does not establish burglary, though it may support another charge.

How is burglary different from unlawful entry under the same article?
Burglary requires the intent to commit a UCMJ offense at the time of entry; unlawful entry does not require that intent. Unlawful entry is the lesser offense within Article 129.

Sources

10 U.S.C. § 929, Article 129: https://www.law.cornell.edu/uscode/text/10/929
Manual for Courts-Martial, United States (2024 edition), Part IV: https://jsc.defense.gov/Portals/99/2024%20MCM%20files/MCM%20(2024%20ed)%20-%20TOC%20no%20index.pdf
2019 Amendments to the Manual for Courts-Martial (Executive Order 13825): https://www.federalregister.gov/documents/2018/03/08/2018-04860/2018-amendments-to-the-manual-for-courts-martial-united-states
United States v. Williams, 16 M.J. 636 (A.C.M.R. 1983): https://www.armfor.uscourts.gov/
Military Attorney Joseph L. Jordan, Articles of the UCMJ

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.

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