The MCM states any service member may be subject to prosecution for burglary if they, with intent to commit an offense under this chapter, break the building or structure of another. A service member may be subject to prosecution for unlawful entry if they unlawfully enter the real property of another or the personal property, which amounts to a structure usually used for habitation or storage.
To be prosecuted for burglary, the prosecution must demonstrate that:
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the accused unlawfully broke the building or structure of another, and
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the breaking was done with the intent to commit an offense punishable under the UCMJ.
** The specification that the breaking was with the intent to commit an offense punishable under Articles 118-120, 120b-121, 122, 125-128a, and 130 may be added, if applicable.
To be convicted of unlawful entry, it must be proven that:
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the accused entered the real property of another or specific personal property of another, which amounts to a structure usually used for habitation or storage and
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the entry was unlawful.
Understanding Article 129 (Burglary; Unlawful Entry) of the UCMJ
Article 129 combines and consolidates the crimes of burglary, housebreaking, and unlawful entry. Burglary does not require that the accused break in the nighttime or that the structure entered constitute the dwelling house of another to commit the offense. The burglary offense requires the accused to have committed the offense with intent to commit a punishable offense. The intended offense may be charged separately. Whether or not the intended offense is committed, attempted, or impossible to complete is irrelevant.
To constitute breaking, there must be a breaking, actual or constructive. Merely entering through a hole left in the wall or roof or through an open window or door will not constitute a breaking, but if a person moves any obstruction to the entry of the house without which movement the person could not have entered, the person has committed a breaking. Opening a closed door or window or other similar fixture, opening a door or window that is already partly open but insufficient for entry, or cutting out the window’s glass or the netting of a screen is a sufficient breaking. The breaking of an inner door by one who has entered the house without breaking or by a person lawfully within the house who has no authority to enter the particular room is sufficient. Still, burglary is not committed unless such breaking is followed by an entry into the specific room with the requisite intent. There is a constructive breaking when the entry is gained by a trick, such as concealing oneself in a box; under pretenses, such as impersonating a gas or telephone inspector; by intimidating the occupants through violence or threats into opening the door; through collusion with a confederate, an occupant of the house; or by descending a chimney, even if only a partial descent is made and no room is entered.
An entry must be effected before the offense is complete, but the entry of any part of the body, even a finger, is sufficient. Insertion into the house of a tool or other instrument is also an adequate entry unless the insertion is solely to facilitate the breaking or entry. An entry is unlawful if made without the consent of any person authorized to enter or without other lawful authority. Neither specific intent to commit an offense nor breaking is required for it to be considered an offense. An entry is unlawful if made without the consent of any person authorized to consent to entry or without other lawful authority.
Maximum Possible Punishment for Violations of Article 129
Service members convicted of burglary with the intent to commit an offense punishable under Articles 118-120, 120b-121, 122, 125-128a, or 130 face the maximum possible punishment of a dishonorable discharge, forfeiture of all pay and allowances, and confinement for ten years.
A burglary conviction, intending to commit any other offense punishable under the UCMJ, carries the maximum possible punishment of a dishonorable discharge, forfeiture of all pay and allowances, and confinement for five years.
An unlawful entry conviction carries a maximum possible punishment of a bad-conduct discharge, forfeiture of all pay and allowances, and confinement for six months.
How do you defend against Article 129 Burglary; Unlawful Entry charges?
When facing the combined resources of the military and the current cultural climate, you need to be prepared to defend your career and your freedom. Crisp and Associates, LLC has a team of experienced trial attorneys with over 75 years of combined experience who have won these cases. This team includes the firm’s founder, Jonathan Crisp, a highly respected and sought-after attorney, speaker, and lecturer who has served in the U.S. Army Judge Advocate General’s Corps (JAG) since 1998 and entered private practice in 2007.
If you, or someone you know, is facing Article 129 charges for Burglary Unlawful Entry, you need to speak with a Military defense attorney immediately. We understand what is at risk and know how to protect your career, freedom, and future.
