Part IV · Punitive Articles

Article 129. Burglary; unlawful entry · MCM ¶ 79

2024 Manual for Courts-Martial, United States

Recent revisions Summary of changes
(a) Text of statute.
(a) BURGLARY.—Any person subject to this chapter who, with intent to commit an offense under this chapter, breaks and enters the building or structure of another shall be punished as a court-martial may direct.
(b) UNLAWFUL ENTRY.—Any person subject to this chapter who unlawfully enters—
(1) the real property of another; or
(2) the personal property of another which amounts to a structure usually used for habitation or storage; shall be punished as a court-martial may direct.
(b) Elements.
(1) Burglary.
(a) That the accused unlawfully broke and entered the building or structure of another; and
(b) That the breaking and entering were done with the intent to commit an offense punishable under the UCMJ.
Practice Note
[Note: If the breaking and entering were with the intent to commit an offense punishable under sections 918-920, 920b-921, 922, 925-928a, and 930 of this title (Article 118-120, 120b-121, 122, 125-128a, and 130), add the following element:]
(c) That the breaking and entering were with the intent to commit an offense punishable under Article 118-120, 120b-121, 122, 125-128a, and 130.
(2) Unlawful entry.
(a) That the accused entered—
(i) the real property of another; or
(ii) certain personal property of another which amounts to a structure usually used for habitation or storage; and
(b) That the entry was unlawful.
(c) Explanation.
(1) In general. This article combines and consolidates the crimes of burglary, housebreaking, and unlawful entry. There is no requirement that an accused break and enter in the nighttime or that the structure entered constitute the dwelling house of another to commit the offense of burglary.
(2) 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 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 wider a door or window already partly open but insufficient for the entry, or cutting out the glass of a window 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 a sufficient breaking, but unless such a breaking is followed by an entry into the particular room with the requisite intent, burglary is not committed. There is a constructive breaking when the entry is gained by a trick, such as concealing oneself in a box; under false pretense, 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.
(3) Entry. 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 a sufficient entry, unless the insertion is solely to facilitate the breaking or entry. An entry is unlawful if made without consent of any person authorized to consent to entry or without other lawful authority.
(4) Building , structure . Building includes room, shop, store, office, or apartment in a building. Structure refers only to those structures that are in the nature of a building or dwelling. Examples of these structures are a stateroom, hold, or other compartment of a vessel, an inhabitable trailer, an enclosed truck or freight car, a tent, and a houseboat. It is not necessary that the building or structure be in use at the time of the entry.
(5) Intent to commit offense.
(a) Burglary. Both the breaking and entry must be done with the intent to commit an offense punishable under the UCMJ in the building or structure. If, after the breaking and entering, the accused commits one or more of these offenses, it may be inferred that the accused intended to commit the offense or offenses at the time of the breaking and entering. If the evidence warrants, the intended offense may be separately charged. It is immaterial whether the offense intended is committed or even attempted. If the offense is intended, it is no defense that its commission was impossible. For example, if an accused enters a house with intent to murder a resident, but the resident is not present in the house, the accused may still be found guilty of burglary.
(b) Unlawful entry. Neither specific intent to commit an offense, nor breaking is required for this offense.
(6) Property protected from unlawful entry. The property protected against unlawful entry includes real property and the sort of personal 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. It would usually not include an aircraft, automobile, tracked vehicle, or a person’s locker, even though used for storage purposes. However, depending on the circumstances, an intrusion into such property may be punishable under Article 134, UCMJ as conduct prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces.
(7) Unlawfulness of entry. An entry is unlawful if made without the consent of any person authorized to consent to entry or without other lawful authority.
(d) Maximum punishment.
(1) Burglary (with the 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.
(2) 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.
(3) Unlawful entry. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months.
(e) Sample specification s.
(1) Burglary In that __________ (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about _____ 20 __, unlawfully break and enter the (building) (structure) of __________, to wit _______, with intent to commit an offense under the Uniform Code of Military Justice therein, to wit: _________________.
(2) Unlawful entry. In that __________, (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about _____ 20 __, unlawfully enter the (real property) (personal property) (a structure usually used for habitation or storage) of ____________, to wit ____________.
Information on this tab is reproduced from the U.S. Army Military Judges’ Benchbook (Electronic Benchbook v2.70, updated 2026-05-26). It is for informational purposes only to compare to the text on the Manual for Courts-Martial on the MCM tab. Always check the current EBB to make sure you’re reviewing the most recent information.

NOTE 1. Use this instruction only for burglary offenses involving the intent to commit the offenses punishable under Articles 118 - 120, 120b-121, 122, 125-128a, or 130. Where the intent is to commit any other offense, use instruction 3A-79-2.
NOTE 2. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
Maximum punishment

DD, TF, 10 years, E-1. (Category 3)

Sample specification

In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, unlawfully break and enter the (building) (structure) of __________, to wit: ___________, with intent to commit an offense under the Uniform Code of Military Justice therein, to wit: ______________.

Elements

(1) That (state the time and place alleged), the accused unlawfully broke and entered the building or structure of (state the person alleged), to wit: (state the building/structure alleged); and

(2) That the breaking and entering were done with the intent to commit (state the offense alleged), an offense punishable under the Uniform Code of Military Justice.

Definitions & other instructions

A “breaking” may be 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 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 wider a door or window already partly open but insufficient for the entry, or cutting out the glass of a window 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 a sufficient breaking, but unless such a breaking is followed by an entry into the particular room with the requisite intent, burglary is not committed. There is a constructive breaking when the entry is gained by a trick, such as concealing oneself in a box; under false pretense, 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 any tool or other instrument is also a sufficient entry, unless the insertion is solely to facilitate the breaking or entry.

An entry is “unlawful” if it is made without the consent of any person authorized to consent to entry or without other lawful authority.

(A “building” includes a room, shop, store, office, or apartment in a building.)

(“Structure” refers to only those structures which are in the nature of a building or dwelling. Examples include: A stateroom, hold, or other compartment of a vessel; an inhabitable trailer; an enclosed truck or freight car; a tent; a houseboat.)

It is not necessary that the building or structure be in use at the time of entry.

NOTE 3. In the case of semi-private structures, e.g., barracks or tents, the following instruction should be added to the definition of “unlawful” (above). It is based on US v. Davis, 56 MJ 299 (CAAF 2002) citing US v. Williams, 15 CMR 241 (CMA 1954).

Whether the accused’s entry was “unlawful” is a fact for you to decide based on all of the evidence in this case. In determining whether the entry was unlawful you should consider all the relevant facts and circumstances, including, but not limited to: (the nature and function of the building involved) (the character, status, and duties of the accused) (the conditions of the entry, including time, method, and the accused’s ostensible purpose, if any) (the presence or absence of a directive seeking to limit or regulate free ingress) (the presence or absence of an explicit invitation to the accused) (the invitational authority of any purported host) (the presence or absence of a prior course of dealing, if any, by the accused with the structure or its inmates, and its nature); (and) (whether the accused intended to commit a criminal offense inside the building).

NOTE 4. Elements of the offense intended. The following instruction, listing the elements and necessary definitions of the offense intended, must be given. If murder was the intended offense, the military judge must instruct as to the elements of murder committed with the intent to kill.

Proof that the accused actually committed or even attempted the offense of (state the offense allegedly intended) is not required, but you must be convinced beyond a reasonable doubt that the accused intended each element of that offense at the time of the unlawful breaking and entering. These elements are: (list here the elements of the allegedly intended offense).

NOTE 5. Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), is ordinarily applicable. Instruction 6-5, Partial Mental Responsibility, Instruction 5-15, Evidence Negating Mens Rea, and Instruction 5-21, Voluntary Intoxication, as bearing on the issues of the specific intent to commit the allegedly intended offense, may be applicable.
Source: Instruction 3a-79-1 · view original on jagcnet.army.mil

NOTE 1. Use this instruction for burglary offenses not involving the intent to commit the offenses punishable under Articles 118-120, 120b-121, 122, 125-128a, and 130. Where the intent is to commit any of those offenses, use instruction 3a-79-1.
NOTE 2. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
Maximum punishment

DD, TF, 5 years, E-1. (Category 2)

Sample specification

In that __________, (personal jurisdiction data), did, (at/on board—location), on or about __________, unlawfully break and enter the (building) (structure) of ________, to wit: ________, with intent to commit an offense under the Uniform Code of Military Justice therein, to wit: __________.

Elements

(1) That (state the time and place alleged), the accused unlawfully broke and entered the building or structure of (state the person alleged), to wit: (state the building/structure alleged); and

(2) That the breaking and entering were done with the intent to commit (state the offense alleged), an offense punishable under the Uniform Code of Military Justice.

Definitions & other instructions

A “breaking” may be 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 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 wider a door or window already partly open but insufficient for the entry, or cutting out the glass of a window 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 a sufficient breaking, but unless such a breaking is followed by an entry into the particular room with the requisite intent, burglary is not committed. There is a constructive breaking when the entry is gained by a trick, such as concealing oneself in a box; under false pretense, 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 any tool or other instrument is also a sufficient entry, unless the insertion is solely to facilitate the breaking or entry.

An entry is “unlawful” if it is made without the consent of any person authorized to consent to entry or without other lawful authority.

(A “building” includes a room, shop, store, office, or apartment in a building.)

(“Structure” refers to only those structures which are in the nature of a building or dwelling. Examples include: A stateroom, hold, or other compartment of a vessel; an inhabitable trailer; an enclosed truck or freight car; a tent; a houseboat.)

It is not necessary that the building or structure be in use at the time of entry.

NOTE 3. In the case of semi-private structures, e.g., barracks or tents, the following instruction should be added to the definition of “unlawful” (above). It is based on US v. Davis, 56 MJ 299 (CAAF 2002) citing US v. Williams, 15 CMR 241 (CMA 1954).

Whether the accused’s entry was “unlawful” is a fact for you to decide based on all of the evidence in this case. In determining whether the entry was unlawful you should consider all the relevant facts and circumstances, including, but not limited to: (the nature and function of the building involved) (the character, status, and duties of the accused) (the conditions of the entry, including time, method, and the accused’s ostensible purpose, if any) (the presence or absence of a directive seeking to limit or regulate free ingress) (the presence or absence of an explicit invitation to the accused) (the invitational authority of any purported host) (the presence or absence of a prior course of dealing, if any, by the accused with the structure or its inmates, and its nature); (and) (whether the accused intended to commit a criminal offense inside the building).

NOTE 4. Elements of the offense intended. The following instruction, listing the elements and necessary definitions of the offense intended, must be given.

Proof that the accused actually committed or even attempted to commit the offense of (state the offense allegedly intended) is not required. However, you must be convinced beyond a reasonable doubt that the accused intended each element of that offense at the time of the unlawful entry. These elements are: (list the elements of the offense allegedly intended).

NOTE 5. Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), is ordinarily applicable. Instruction 6-5, Partial Mental Responsibility, Instruction 5-15, Evidence Negating Mens Rea, and Instruction 5-21, Voluntary Intoxication, as bearing on the issue of specific intent to commit the alleged offense, may be applicable.
Source: Instruction 3a-79-2 · view original on jagcnet.army.mil

NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
Maximum punishment

BCD, TF, 6 months, E-1. (Category 1)

Sample specification

In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, unlawfully enter the (real property) (personal property) (a structure usually used for habitation or storage) of __________, to wit: _______________.

Elements

(1) That (state the time and place alleged), the accused entered the [real property of (state the person alleged)] [personal property of (state the person alleged), amounting to a structure usually used for habitation or storage], to wit: (state the property alleged); and

(2) That the entry was unlawful.

Definitions & other instructions

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 property of a tool or other instrument is also a sufficient entry, unless the insertion is solely to facilitate the entry.

An entry is “unlawful” if it is made without the consent of any person authorized to consent to entry or without other lawful authority.

It is not necessary that the property be in use at the time of entry.

(“Personal property amounting to a structure usually used for habitation or storage” usually includes vehicles expressly used for habitation, such as mobile homes and recreational vehicles. It would usually not include an aircraft, automobile, tracked vehicle, or a person’s locker, even though used for storage purposes. Whether the property alleged amounts to “personal property amounting to a structure usually used for habitation or storage” is a question of fact for you to decide.)

Source: Instruction 3a-79-3 · view original on jagcnet.army.mil