UCMJ Article 129: Burglary
Someone says you broke into a barracks room, an office or someone’s home. Now the government wants to turn that accusation into a burglary conviction. Before you accept its version of events, ask what proves the entry was unlawful and what proves you went inside intending to commit a crime.
At Bilecki Law Group, we defend service members facing burglary charges under Article 129 of the UCMJ. For conduct on or after 1 January 2019, burglary is not limited to a home or something that happened at night. The charge concerns unlawfully breaking and entering another person’s building or structure with the intent to commit a UCMJ offense inside.
A conviction can mean years of confinement, loss of pay and a punitive discharge. Additional charges can increase what is at stake, but those consequences are not automatic. You need to understand the actual charge and the facts before deciding how to fight it.
Facing an Article 129 charge? See how our robbery and burglary defense lawyers handle these cases. Related result: Bilecki Wins Suppression and Negotiates Dismissal of Burglary Charges; Marine Receives Eighteen Months. Past results do not guarantee a similar outcome.
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How We Fight an Article 129 Burglary Charge
The prosecution has to prove more than your presence in a building. It has to prove an unlawful breaking and entry, together with the intent to commit the alleged offense inside. Intent, therefore, will play a critical role in the defense. So will the way you entered and whether you had permission to be there.
If the government wants the judge or jury to fill those gaps with assumptions, we push back. A damaged door does not identify the person who damaged it. A fingerprint does not tell you when it was left. And an accusation about what happened inside does not, by itself, establish what you intended when you entered.
Let’s look at these factors in more detail:
What Actually Places You There?
Is there any evidence at all which puts you at the scene of the crime? We examine the surveillance, access records, witness accounts and any forensic evidence the government relies on. If you were a frequent visitor, your fingerprints or DNA may have an explanation that has nothing to do with a burglary. If a witness identified you, we want to know what that person could see and when the identification first appeared in the investigation.
The timeline matters. We compare the alleged entry with messages, duty records and other available evidence, and examine how physical evidence was collected and handled. We want the facts that support your account in the case before the prosecution’s assumptions become the accepted story.
What Did You Intend When You Entered?
What, exactly, does the government say you went inside to do? We examine what you said and did before the entry, what happened afterward and whether the prosecution’s theory fits the full sequence. The intent to commit the alleged UCMJ offense must exist at the time of both the breaking and the entry.
Entering for a lawful reason and deciding later to commit an offense presents a different burglary question from entering with that intent already formed. On the other hand, being stopped before completing the intended offense does not automatically defeat a burglary charge. And an intent to steal can support burglary; calling theft a lesser offense does not make it a defense.
Did You Have Permission, and Was There a Breaking?
Were you assigned to that room? Did someone with authority invite you in? Did your permission cover the particular office, compartment or room you entered? We examine messages, room assignments, keys and the people who could actually authorize access. A past invitation does not settle whether you had permission on this occasion.
A breaking does not require a smashed window. Opening a closed door can qualify, and entry obtained through fraud or threats can also satisfy that requirement. Simply walking through an already open, unobstructed doorway is different. Even permission to enter a building does not necessarily authorize breaking into an interior room. We apply those distinctions to the actual entry the government alleges.
CAN BE A BREAKING
DIFFERENT
Walking through an already open, unobstructed doorway
Permission to enter a building does not necessarily authorize breaking into an interior room
Get Bilecki Law Group Into the Fight
You do not need to decide that your case is unwinnable before a defense lawyer has examined it. A burglary accusation may come with allegations of theft, assault or another offense. We work through each charge, identify what the government still has to prove and prepare to challenge the witnesses and assumptions tying them together.
Tim Bilecki and Ben Gold work your defense together. Tim is a former Army judge advocate, and Ben is a former Navy Surface Warfare Officer. We examine the entry, the timeline and the alleged intent, and bring in independent professionals when the investigation or forensic questions call for them. Civilian defense counsel can work alongside your appointed military defense counsel.
We’ll shoot you straight about the strengths and weaknesses of the government’s case. If the prosecution is asking you to accept a burglary conviction on facts that do not prove burglary, we are prepared to take that fight to trial. Contact Bilecki Law Group to discuss the charges and your next step.
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What Must the Government Prove Under Article 129?
For conduct on or after 1 January 2019, the prosecution must prove each of these burglary elements beyond a reasonable doubt:
- You unlawfully broke and entered another person’s building or structure.
- At the time of both the breaking and the entry, you intended to commit an offense under the UCMJ inside.
The government must identify the intended offense. To establish the burglary form carrying a ten-year maximum, it must also prove that the intended offense falls under Articles 118–120, 120b–121, 122, 125–128a or 130. Burglary with intent to commit another UCMJ offense carries a different maximum.
The building need not be a dwelling, and the entry need not occur at night. A room, office or apartment can qualify, as can certain other structures used for habitation or storage. The government does not have to prove that the intended offense was completed.
How Is Unlawful Entry Different?
Article 129(b) separately covers unlawful entry. The prosecution must prove that you entered another person’s real property, or personal property amounting to a structure usually used for habitation or storage, and that your entry was unlawful. It does not have to prove a breaking or an intent to commit another offense inside.
BURGLARY · ARTICLE 129(A)
An unlawful breaking and entry · Intent to commit a UCMJ offense inside, at the time of both
UNLAWFUL ENTRY · ARTICLE 129(B)
An unlawful entry · No breaking and no intent to commit another offense required
That distinction matters when the government can prove an unauthorized entry but cannot prove burglary. Unlawful entry has its own elements and substantially lower maximum punishment. We examine the charge that was actually brought and the findings the law permits.
Maximum Punishment and Sentencing Parameters
The intended offense changes the maximum punishment for burglary. These are the current confinement limits for a single offense, not a prediction of your sentence.
| Offense | Maximum confinement | Category | Confinement range |
|---|---|---|---|
| Burglary with intent to commit an offense under Articles 118–120, 120b–121, 122, 125–128a or 130 | 10 years | Category 3 | 30–120 months |
| Burglary with intent to commit another UCMJ offense | 5 years | Category 2 | 1–36 months |
| Unlawful entry | 6 months | Category 1 | 0–6 months |
Both burglary forms authorize a dishonorable discharge and forfeiture of all pay and allowances. Unlawful entry authorizes a bad-conduct discharge and forfeiture of all pay and allowances. Reduction to E-1 applies to enlisted members. Dismissal, rather than an enlisted punitive discharge, applies to commissioned officers, including commissioned warrant officers, and cadets and midshipmen, and requires a general court-martial. The available punishment also depends on the accused’s status and the court-martial’s authority.
For noncapital general and special courts-martial, the sentencing parameter system applies when every offense of conviction occurred on or after 28 December 2023. The military judge must sentence within the applicable confinement range unless specific facts justify a departure, with a written statement explaining the factual basis. These ranges do not replace the lawful maximum punishment or the limits of the court-martial. A plea agreement may further limit the sentence. Earlier conduct requires the law applicable at the time.
The unlawful-entry range is capped at its six-month maximum. A special court-martial remains limited by its own sentencing authority even when an offense or category permits more.
Frequently Asked Questions About Article 129
Can I Face Burglary and Another Charge for the Same Incident?
Yes. Burglary requires an intent to commit another UCMJ offense inside, and a completed offense may support an additional charge. Depending on the facts, examples include larceny under Article 121, robbery under Article 122 or assault under Article 128. Those examples are not the complete list of offenses that can support a burglary allegation.
Additional charges do not mean the maximum sentences automatically stack. The court must apply the rules governing concurrent and consecutive confinement, any plea agreement and the forum’s limits. We also examine whether the government has charged the same criminal conduct in ways the law does not permit.
Does the Government Have to Prove That I Stole Something?
No. Burglary requires the intent to commit a UCMJ offense inside at the time of the unlawful breaking and entry. The intended offense need not be theft, and it need not be completed. That does not excuse the government from proving that intent and the other burglary elements beyond a reasonable doubt.