(dissenting):
Article 129 of the Uniform Code of Military Justice, 10 U.S.C. § 929, prohibits burglary, which it defines as breaking and entering “the dwelling house of another .. . in the nighttime ... with intent to commit” specified serious crimes. In turn, Article 130, UCMJ, 10 U.S.C. § 930, proscribes as housebreaking the conduct of a person subject to the Code who “unlawfully enters the building or structure of another with intent to commit a criminal offense therein.” Although not specifically defined by the Code, a related but lesser offense — unlawful entry — has long been recognized in military justice as punishable under Article 134, UCMJ, 10 U.S.C. § 934 — the general *408article. See, e.g., United States v. Love, 4 U.S.C.M.A. 260, 15 C.M.R. 260 (1954).
Although unlawful entry into a “building or structure of another” is required as an element when the prosecution is for housebreaking, there is no logical necessity that a similar requirement apply in a prosecution for “unlawful entry.” Apparently, the draftsmen of the Manual did not believe that a “building or structure” was necessary for commission of this offense, since the form specification for “unlawful entry” includes a “vegetable garden” or an “orchard” among the possible targets of the entry. See App. 6c, Form 185, Manual for Courts-Martial, United States, 1969 (Revised edition); App. 6c, Form 174, Manual for Courts-Martial, United States, 1951.
My concern is that, once we go beyond a “building or structure” as the object of the unlawful entry prohibited by Article 134, there is no logical stopping point. What are the unique features of a “vegetable garden,” “orchard,” or as in the present case, “a storage area”? According to the evidence, appellant entered “a storage area” surrounded by a fence,* but presumably the presence of a fence is not the litmus test. Certainly the Manual does not indicate that the “orchard” or “vegetable garden” must be fenced in order for the unlawful entry to violate the Code.
In short, it appears to me that, under the majority’s interpretation, any servicemember who steps into someone’s yard without permission may be subject to prosecution for an offense punishable by a punitive discharge and 6 months’ confinement. Creating such broad liability without more specific congressional approval is a step I hesitate to take. Moreover, to do so raises questions as to whether the notice given to the servicemember of his potential criminal liability is adequate to meet the demands of constitutional due process.
The common law has been criticized at times for its emphasis on the protection of buildings — especially dwellings. Cf. Statutory Burglary — The Magic of Four Walls and a Roof, 100 U.Pa.L.Rev. 411 (1951). Nonetheless, without clear legislative direction, courts have been reluctant to impose substantial criminal liability for unlawful entry into places which lacked the usual characteristics of a building or structure. Cf. State v. Gamble, 286 S.E.2d 804 (N.C.App.1982). Therefore, I must align myself with Chief Judge Quinn’s rejection of the view that “under the present wording of the Uniform Code, there can be an unlawful entry into property other than a ‘building or structure.’ ” United States v. Gillin, 8 U.S.C.M.A. 669, 672, 25 C.M.R. 173, 176 (1958) (Quinn, C.J., concurring in the result).
Of course, this interpretation does not leave a commander without means to protect his post or vital areas therein. By regulations prohibiting access to an area, he can set the stage for prosecution under Article 92 of the Code, 10 U.S.C. § 892, if the regulation is violated. In some instances, an unauthorized entry may be prosecuted as an attempt to commit an intended crime, cf. Article 80, UCMJ, 10 U.S.C. § 880; and a commander may utilize powers conferred upon him by other statutory provisions. See, e.g., 18 U.S.C. §§ 1382, 1857; 50 U.S.C. § 797.
Since the providence inquiry made clear that appellant was not guilty of unlawful entry, I would set aside the plea and the findings of guilty and dismiss Charge I.
However, no reference was made to a fence in the specification.