Legal Disclaimer: This article provides general legal information about the Uniform Code of Military Justice. It is not legal advice and does not create an attorney-client relationship. Every case involves unique facts and circumstances. If you are facing charges under the UCMJ, consult with a qualified military defense attorney immediately.
Both burglary and housebreaking involve unlawfully entering a building with intent to commit a crime inside. The traditional distinction between these offenses is the time of entry: burglary occurs at night, while housebreaking occurs during the day. This historical distinction, rooted in common law concerns about the particular vulnerability of people sleeping in their homes at night, continues to affect charging decisions and punishment under the UCMJ.
The Time Distinction
Article 129 Burglary applies when someone:
Unlawfully breaks and enters the dwelling of another
In the nighttime
With intent to commit a criminal offense therein
The nighttime element is essential. Without it, the same conduct becomes housebreaking rather than burglary.
Article 130 Housebreaking applies when someone:
Unlawfully enters the building or structure of another
With intent to commit a criminal offense therein
No time-of-day requirement exists. Housebreaking can occur at any hour. But when the entry occurs at night into a dwelling, the more serious burglary charge applies.
Why Nighttime Matters
The burglary/housebreaking distinction reflects ancient concerns about nighttime danger:
Vulnerability during sleep. People sleeping at night are particularly defenseless against intruders.
Difficulty of identification. Darkness makes it harder to identify and apprehend intruders.
Increased terror. Nighttime intrusions create greater fear and psychological harm.
Greater risk of violence. Confrontations in the dark are more likely to turn deadly.
These rationales explain why burglary (nighttime entry) carries harsher punishment than housebreaking (daytime entry).
The “Dwelling” Requirement
Burglary specifically requires entry into a “dwelling,” meaning a structure where people live or sleep. Housebreaking applies to any “building or structure.”
This means:
Nighttime entry into an occupied home: Burglary
Nighttime entry into an empty warehouse: Housebreaking (not a dwelling)
Daytime entry into an occupied home: Housebreaking
Daytime entry into an empty warehouse: Housebreaking
The dwelling requirement for burglary reflects the law’s particular concern with protecting homes and sleeping occupants.
Breaking and Entering
Both offenses require unlawful entry, but burglary traditionally requires “breaking” as well as entering:
Breaking. Using force to create an opening, or opening something that’s closed (even turning a doorknob on an unlocked door can constitute breaking).
Entering. Any part of the body or an instrument used to commit the crime entering the structure.
Housebreaking requires only “unlawful entry” without the specific breaking requirement. Walking through an open door without permission is unlawful entry (housebreaking) even without breaking.
In practice, the breaking element is interpreted broadly. Opening a closed but unlocked door or window is sufficient. Breaking doesn’t require damaging the structure.
Intent to Commit a Crime
Both offenses require intent to commit a criminal offense inside the structure. The entry itself isn’t enough; the intruder must enter with criminal purpose.
Common intended crimes include:
Larceny (stealing property)
Assault
Sexual offenses
Vandalism
The intended crime doesn’t have to be completed. The offense is complete upon entry with criminal intent. If someone breaks in intending to steal but is caught before taking anything, they’re still guilty of burglary or housebreaking.
Typical Fact Patterns
Clear burglary:
At 2:00 AM, a service member breaks a window and enters a fellow service member’s off-post apartment, intending to steal electronics. Nighttime entry, dwelling, breaking and entering, intent to commit larceny. This is burglary.
Clear housebreaking:
At 2:00 PM, a service member forces open a locked supply room door and enters, intending to steal equipment. Daytime, non-dwelling structure, unlawful entry with criminal intent. This is housebreaking.
The dwelling question:
A service member breaks into a barracks room at night to steal from the occupant who’s away on leave. Is this burglary?
The barracks room is a dwelling (where someone lives and sleeps), and entry is at night with intent to steal. Even though the occupant wasn’t present at that moment, the structure is still a dwelling. This is likely burglary.
The nighttime question:
A service member enters another’s home without permission at dusk. Is this burglary or housebreaking?
“Nighttime” for burglary purposes typically means the period between sunset and sunrise when darkness makes identification difficult. Dusk and dawn create ambiguity. The precise timing and visibility conditions would be examined to determine whether it was legally “night.”
Punishment Comparison
Article 129 (Burglary):
Dishonorable discharge, forfeiture of all pay and allowances, confinement for 10 years
Article 130 (Housebreaking):
Dishonorable discharge, forfeiture of all pay and allowances, confinement for 5 years
The 10-year maximum for burglary versus 5 years for housebreaking reflects the greater seriousness attributed to nighttime dwelling intrusions.
Related Offenses
Burglary and housebreaking often accompany other charges:
Larceny (Article 121). If property was actually stolen after entry.
Assault (Article 128). If occupants were confronted and harmed.
Property damage (Article 109). If the structure was damaged during entry.
The intended crime. Whatever crime the intruder intended to commit, if completed.
A single incident can result in multiple charges: burglary for the entry, larceny for the theft, assault for confronting an occupant.
The Attempt Scenario
What if someone is caught trying to break in but never actually enters?
Attempted burglary (Article 80) applies when:
The accused intended to commit burglary
The accused took a direct step toward committing it
The burglary wasn’t completed
Being caught while trying to force a window at night, with tools for breaking in, supports attempted burglary even without successful entry.
Defenses
For both offenses:
Permission to enter (wasn’t unlawful entry)
No intent to commit a crime inside (entry was for lawful purpose)
Mistaken identity (accused wasn’t the intruder)
Mistake about ownership (genuinely believed it was their own property)
Specific to burglary:
Entry wasn’t at nighttime
Structure wasn’t a dwelling
No breaking occurred (for jurisdictions requiring breaking)
Specific to housebreaking:
Entry was lawful
No criminal intent at time of entry
The Constructive Entry Issue
Entry doesn’t require the intruder’s whole body to enter. Extending an instrument into the structure can constitute entry:
Reaching through a window to grab property
Using a tool to manipulate locks or steal items
Inserting any object used to accomplish the intended crime
This prevents criminals from avoiding burglary/housebreaking charges by reaching in rather than stepping in.
Military Housing Considerations
Military installations present unique scenarios:
Barracks. Each room is typically a dwelling for its assigned occupant. Entry into another’s room can be burglary.
Common areas. Shared spaces may not qualify as dwellings, making unauthorized entry housebreaking rather than burglary.
Family housing. On-post housing is clearly a dwelling.
Restricted buildings. Entry into restricted areas with criminal intent is housebreaking regardless of time.
The characterization depends on the specific structure and its use.
Command Authority and Entry
Service members sometimes believe they have authority to enter spaces they don’t:
NCOs entering subordinates’ rooms. May have some authority for inspections but not for other purposes.
Roommates. Generally have authority to enter shared spaces but not others’ private areas.
Former residents. Lose authority to enter after moving out.
Entry under claimed authority that doesn’t actually exist is still unlawful entry.
Frequently Asked Questions
If I walked into an unlocked building without forcing anything open, can I be charged with housebreaking?
Yes. Housebreaking requires “unlawful entry,” not breaking. Walking through an unlocked door without permission is unlawful entry if you weren’t authorized to be there and entered with intent to commit a crime. The absence of forced entry doesn’t prevent charges. Even for burglary, “breaking” is interpreted broadly to include opening closed doors or windows, even unlocked ones. The critical elements are: you weren’t authorized to enter, you entered anyway, and you intended to commit a crime inside. How you got in matters less than whether you had permission.
What if I entered a building lawfully but then decided to steal something after I was inside?
The timing of your criminal intent matters. Burglary and housebreaking require intent to commit a crime at the time of entry. If you entered lawfully (with permission, for a legitimate purpose) but formed criminal intent after entering, the technical elements of burglary or housebreaking aren’t met. However, you could still face charges for whatever crime you actually committed (larceny, for example). Additionally, if you entered spaces within the building you weren’t authorized to access while having formed criminal intent, that subsidiary entry might support housebreaking charges. The defense that criminal intent came later requires careful factual analysis of when you formed the intent to commit the crime.
Does it matter if no one was home when I broke in at night?
For burglary, the structure must be a “dwelling” (where people live), but the occupants don’t have to be present at the moment of entry. A home is still a dwelling when its residents are away at work, on vacation, or temporarily absent. The dwelling characteristic attaches to the structure’s use, not the presence of occupants during the crime. Breaking into someone’s apartment at night while they’re at a movie is still burglary because the apartment is their dwelling. The occupant’s absence might affect other charges (you can’t assault someone who isn’t there) and might affect sentencing, but it doesn’t change burglary to housebreaking.