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.

UNLAWFUL ENTRY.—Any person subject to this chapter 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; shall be punished as a court-martial may direct.

That the accused unlawfully broke and entered the building or structure of another; and

That the breaking and entering were done with the intent to commit an offense punishable under the UCMJ.

[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:]

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.

That the accused entered—

the real property of another; or

certain personal property of another which amounts to a structure usually used for habitation or storage; and

That the entry was unlawful.

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.

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.

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.

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.

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.

Neither specific intent to commit an offense, nor breaking is required for this offense.

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.

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

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.

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.

Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months.

Sample specification s.

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: _________________.

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 ____________.