UCMJ Article 129 Burglary vs Article 130 Housebreaking: Nighttime Entry vs Daytime Entry
On this page: 6 sections
Nighttime and dwelling-house requirements describe burglary as it stood before January 1, 2019. Since then, Article 129 has covered both burglary and unlawful entry, and the Manual for Courts-Martial states that it “combines and consolidates the crimes of burglary, housebreaking, and unlawful entry.” Article 130 now punishes stalking. Under the current law, time of day is not an element of any of these offenses.
What separates the current offenses is breaking and intent: burglary requires breaking and entering another’s building or structure with intent to commit an offense inside; unlawful entry requires neither.
Then and now
Before the 2016 amendments took effect, Article 129 punished breaking and entering, “in the nighttime, the dwelling house of another,” with intent to commit an offense under Articles 118 through 128 (10 U.S.C. § 929, prior text in the statutory notes). The current article absorbed housebreaking and unlawful entry, which had been separate crimes.
The current Article 129:
(a) … 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) … 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.
Source: 10 U.S.C. § 929 (Article 129), as amended by Pub. L. 114-328, § 5442.
The Manual is explicit: “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” (MCM, Part IV, ¶ 79.c(1)).
Burglary
The elements are an unlawful breaking and entering of another’s building or structure, done with intent to commit an offense punishable under the UCMJ (¶ 79.b(1)). The Manual explains each part (¶ 79.c(2)-(5)):
- Breaking can be actual or constructive. Opening a closed door or window, widening a partly open one that was too narrow to enter, or cutting a window screen is enough. Walking through an open door or an existing hole is not. A constructive breaking occurs when entry is gained by a trick, a false pretense such as posing as an inspector, threats that make the occupants open the door, or collusion with someone inside.
- Entry of any part of the body, “even a finger,” is sufficient, as is inserting a tool, unless it is inserted only to facilitate the breaking.
- Building or structure includes a room, shop, store, office, or apartment, and structures 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 at the time.
- Intent must exist at the time of both the breaking and the entry. The intended offense need not be committed or even attempted, and impossibility is no defense.
Unlawful entry
“Neither specific intent to commit an offense, nor breaking is required” (¶ 79.c(5)(b)). An entry is unlawful if made without the consent of a person authorized to consent, or without other lawful authority (¶ 79.c(7)).
The protected property is real property and 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,” though an intrusion into such property may be punishable under Article 134 depending on the circumstances (¶ 79.c(6)).
How the facts sort
| Burglary, 129(a) | Unlawful entry, 129(b) | |
|---|---|---|
| Breaking | Required, actual or constructive | Not required |
| Intent to commit an offense inside | Required | Not required |
| Property | A building or structure of another | Real property of another, or personal property amounting to a structure usually used for habitation or storage |
| Time of day | Not an element | Not an element |
| Dwelling | Not required | Not required |
For example, a service member who pushes open a neighbor’s closed barracks door at noon intending to take a laptop inside commits the breaking, entry, and intent that make burglary, even if the laptop is gone. Walking through an open door into a vacant office to get out of the rain, with no intent to commit any offense, is a different case: there is no breaking and no intent, so burglary does not fit, but entering without consent or authority can be unlawful entry. Whether a particular movement was a breaking, and what the accused intended at the moment of entry, turn on the evidence of how the accused got in and why.
Maximum punishments
| Offense | Maximum (MCM, Part IV, ¶ 79.d) |
|---|---|
| Burglary with intent to commit an offense under Articles 118-120, 120b-121, 122, 125-128a, or 130 | Dishonorable discharge, forfeiture of all pay and allowances, 10 years |
| Burglary with intent to commit any other UCMJ offense | Dishonorable discharge, forfeiture of all pay and allowances, 5 years |
| Unlawful entry | Bad-conduct discharge, forfeiture of all pay and allowances, 6 months |
The intended offense drives the burglary maximum: intent to commit murder, a sexual offense, larceny, robbery, kidnapping, assault, maiming, or stalking, among the listed articles, carries the 10-year ceiling. Conduct before January 1, 2019 is governed by the earlier versions of these offenses. Where every finding of guilty is for an offense committed after December 27, 2023, the military judge determines the sentence in a general or special court-martial, other than in a capital case (10 U.S.C. § 853(b)(1)).
Sources
- 10 U.S.C. § 929, burglary; unlawful entry (Article 129)
- 10 U.S.C. § 930, stalking (Article 130)
- 10 U.S.C. § 853, findings and sentencing (Article 53)
- Manual for Courts-Martial, United States (2024 edition), Part IV, ¶ 79.
Legal information on Article 129 as the statute and the Manual describe it; it does not evaluate any entry into any property. This page reflects the UCMJ as amended through Public Law 119-60 (December 18, 2025) and the Manual for Courts-Martial (2024 edition) as amended by Executive Order 14130.