Article 129 UCMJ | Burglary; Unlawful Entry Charges in the Military

Facing an Article 129 Charge for Burglary or Unlawful Entry? Don’t go it alone.  Military Law Center can help.

The Manual for Courts-Martial, under Article 129 (10 U.S.C. 929), defines burglary as any person subject to the UCMJ who with intent to commit an offense under the UCMJ, breaks and enters the building or structure of another shall be punished as a court-martial may direct.

Unlawful entry under Article 129 is when a person subject to the UCMJ 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.

Burglary or unlawful entry can be proven by the government at court-martial or administrative hearing by proving the elements below.

Burglary Elements:

1. That the accused unlawfully broke and entered the building or structure of another; and
2. That the breaking and entering were done with the intent to commit an offense punishable under the UCMJ.

Unlawful Entry Elements:

1. That the accused entered
   1. The real property of another; or
   2. Certain personal property of another which amounts to a structure usually used for habitation or storage; and
2. That the entry was unlawful.

The terms found within the statute above in Article 129 have specific definitions.  The following definitions apply:

In General: Article 129 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 or another to commit the offense of burglary.

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 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, and occupant of the house; or by descending a chimney, even if only a partial descent is made and no room is entered.

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. 

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.

Intent to Commit 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.

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

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 vehicles, 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.

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.

Pursuant to Rule for Court-Martial 305, a Commanding Officer may order a service member into pretrial confinement for burglary and unlawful entry under Article 129.  The Commanding Officer may place the service member in the brig, not as punishment, but to protect society from the foreseeable risk that the accused will commit another offense.

Attorneys at the Military Law Center help those confined in the brig pretrial seek release at their Initial Review Officer (IRO) hearing.  At an IRO hearing, a neutral and detached officer shall review the probable cause determination and necessity for continued pretrial confinement.  The IRO will consider whether:

• An Article 129 offense triable by court-martial has been committed;
• The confine committed it;
• Confinement is necessary because it is foreseeable that:
  • The confine will not appear at trial, pretrial hearing, or preliminary hearing; or
  • The confine will engage in serious criminal misconduct; and
• Less severe forms of restraint are inadequate.

As an accused, you have the right to require your command present a preponderance of evidence at the IRO hearing to prove why you should remain in pretrial confinement.  Working with experienced military law attorneys for IRO hearings is the first step to showing your command you will fight for your freedom!

An Article 129 charge is serious, can stop a military career, and even warrant brig time.  But there are defenses available to fight the accusation:

• Alibi:
  “Alibi” means that the accused could not have committed the offense charged because the accused was at another place when the offense occurred.  As this defense allows the accused to show he or she was not the person who kidnapped a person at a certain time or place, the government will be unable to meet its burden of proof.  The burden remains on the prosecution to demonstrate the accused’s guilt. 
• Insufficient Evidence:
  The government is required to bring “proof beyond a reasonable doubt” to secure a conviction.  Showing the government lacks sufficient evidence to meet its burden is a defense at trial.
• No Intent:
  Showing the accused lacked the requisite intent is a defense.

The maximum punishment for Article 129 is a dishonorable discharge, confinement for 10 years, total forfeitures of pay and allowances, reduction in rank to E-1, and other lawful punishments.

The potential penalties for offenses in the military under Article 129 vary on the specification charged by the prosecution. A court-martial can impose a range of punishments, including:

• Confinement: The accused may face imprisonment for a specific period determined by the court-martial.
• Reduction in rank: This could involve a demotion to a lower enlisted grade or officer rank.
• Forfeiture of pay and allowances: The accused may lose a portion of their military pay and benefits.
• Bad-conduct discharge: This is a less severe form of separation with a negative characterization, potentially impacting future employment opportunities and veteran benefits.
• Reprimand or admonition: These are non-judicial punishments involving official censure of the accused’s actions.

The specific maximum punishment for an Article 129 offense will depend on how the government presents its case and how many separate specifications the accused is facing.  Our attorneys at the Military Law Center can help estimate your maximum exposure for your case during a free consultation.

The military has the option of charging an accused with Burglary offenses at a court martial or choosing to use the administrative separation board process.  All military services prohibit burglary and unlawful entry.  An ADSEP Board for Article 129 offenses is a more challenging environment for an accused to win because the burden of proof is far lower than that required at a court martial.  

Despite the easier burden for the government, attorneys at the Military Law Center have successfully defended service members facing burglary allegations.  With diligent investigation and excellent courtroom presence, our attorneys have defeated these allegations in the past.  By strategically planning a defense, preparing early, and critically analyzing the evidence, our ADSEP Board attorneys can help get your military career back on track.

When a service member is arrested for burglary or becomes “titled” in a law enforcement investigation, their security clearance may be in jeopardy.  Service members may receive a Request for Supplemental Information (RSI) from the Defense Counterintelligence and Security Agency (DSCA).  DSCA is required to review a service member’s eligibility for an active security clearance when they are charged with or convicted of any criminal offenses (excluding traffic violations that do not involve alcohol or drugs, resulting in fines less than $300) since the last investigation pursuant to DoDM 5200.02. 

As any response to DSCA may be used against a service member later at an ADSEP Board or court martial, it is paramount to consult with a qualified military law attorney with experience with security clearance issues.  Effective responses to a request for supplemental information will use the 2017 National Security Adjudicative Guidelines, Security Executive Agent Directive 4.

An Article 129 arrest and conviction for burglary or unlawful entry can have devastating consequences beyond the courtroom. It can damage your reputation within the military, stall your career progression, and potentially hinder future job opportunities in the civilian sector.

Additionally, service members may be precluded from ownership, receipt, or transport of any firearm that has been transported in interstate or foreign commerce under 18 U.S.C. § 922(g)(6) when the accused separates from the military with a dishonorable discharge or is convicted of an offense punishable with more than one year of confinement.

Facing an Article 129 accusation for burglary or unlawful entry can be terrifying and oftentimes a distressing experience. At Military Law Center, our burglary attorneys understand the challenges you’re facing, and we’re here to help. Here’s what sets us apart:

• Experienced Military Defense Lawyers:
  Our team is comprised of former military judge advocates (JAGs) with a deep understanding of military law and the UCMJ. We’ve successfully defended countless service members facing all kinds of allegations, and we know how to litigate the complexities of military justice from start to finish.
• Personalized Attention:
  We care for every client as an individual. We’ll take the time to understand your specific situation and develop a personalized defense strategy, to include rehabilitation options, designed to achieve the best possible outcome.
• Aggressively Protecting Your Rights:
  We’re committed to fighting for your rights and ensuring you receive fair treatment throughout the legal process. We’ll explore all available defenses and work tirelessly to protect your career and reputation.
• Clear Communication:
  We understand legal terms can be confusing. We’ll keep you informed about the progress of your case and explain everything in clear, understandable terms.
• Free Consultation:
  We offer a free consultation to discuss your situation and answer any questions you may have. This allows you to make informed decisions about your defense strategy.

Don’t Face Article 129 Allegations Alone. Military Law Center Can Help.

An Article 129 charge can take away your gun rights and security clearance, stall your military career, and damage your personal and professional reputation. But you don’t have to fight by yourself. Military Law Center has a proven track record of successfully defending service members facing the most serious charges like burglary and getting them the help they need. Our experienced military law attorneys understand the military justice system and will work tirelessly to protect your rights and achieve the best possible outcome for your case.

Contact Military Law Center today for a free consultation.
We’ll stand by your side and fight for you.

Call Us Today – (760) 536-9038